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Dr. Foulds and colleagues developed a 10-question scale to assess nicotine dependence and administered it to a sample of 2,368 current electronic cigarette users. Subjects were asked to fill out the scale to assess the level of their addiction while smoking, and then again to assess the level of their current addiction using electronic cigarettes.

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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.

Second, in dual users, the total amount of nicotine intake declines. The increase in electronic cigarette use over time is accompanied by a concomitant decline in cigarette smoking. Thus, overall nicotine declines.


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