If the policy were based on health principles, it would encourage smokers to quit, and therefore, it would reward smokers who are trying to quit using nicotine patches, nicotine gum, or electronic cigarettes, rather than exclude these individuals from employment.

In my view, it is impossible to justify this aspect of the FDA's proposed deeming regulations because any restrictions on marketing to adult consumers should be based on the need to prevent companies from transmitting false, misleading, or deceptive information. Prohibiting companies from telling consumers the truth does not advance any legitimate government interest.

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