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For this reason, I believe there is a serious question as to the constitutionality of this provision of the deeming regulations. The government cannot interfere with commercial speech unless that interference is necessary to promote a legitimate government interest. The only way that the government could show that a ban on stating that electronic cigarettes are safer than tobacco cigarettes advances a legitimate government interest would be to provide evidence that electronic cigarettes are not safer than real cigarettes. Since such evidence does not exist, the government would have a difficult time making the case. Therefore, I believe that if the deeming regulations are promulgated in their current form, this aspect of the regulations will be successfully challenged by the electronic cigarette industry.

This survey has two major implications for public health regulation.

It may actually be the case that electronic cigarettes serve as an inhibitor of smoking initiation by getting a youth used to a flavorful experience, thus making it less likely - not more likely - that the youth will move on to the harsh taste of tobacco. It is difficult enough to enjoy the initial experiences with tobacco cigarettes, but it would be expected to become that much less enjoyable if one has become accustomed to a flavored nicotine product like electronic cigarettes.

Clearly, the FDA does not believe that there is sufficient evidence at the present time to conclude that cigarette smoking is any more hazardous than vaping.


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