The deeming regulations subject electronic cigarettes to section 911 of the Family Smoking Prevention and Tobacco Control Act, which prohibit the marketing of tobacco products as modified risk products without the approval of the FDA. Specifically, what this means is that electronic cigarette companies cannot tell consumers the simple truth: that their products are safer than tobacco cigarettes. They cannot even tell consumers that the intended purpose of these products is to provide a safer alternative to smoking.

The rest of the story is that what these members of Congress are asking the Attorneys General to do is to trample on the Constitution. They are asking the Attorneys General to violate the established laws of their state by not only ignoring the clear language of the MSA, but by illegally enforcing a contract on parties that did not consent to that contract in the first place.

Whether e-cigarette use precedes smoking or smoking precedes e-cigarette use is a critical question, but it is one which needs to be answered through longitudinal research. We need studies that follow the trajectory of teen tobacco/e-cigarette use over time. That is the only way to determine which comes first.

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