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.

For this reason, I am discouraged about the possibility that people like Dr. Glantz and Dr. Chapman will change their minds about the potential utility of e-cigarettes if further evidence accumulates to demonstrate the benefits of these products. The science is simply not going to matter to them. Hopefully, the science will matter to the FDA.

These groups agreed to and supported legislation would specifically did not remove these brands from the market. Instead, the legislation simply mandated that these descriptor terms not be used after June 21, 2010.

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