An established principle of contract law is that both parties must agree to the terms. There must be mutual assent. However, the electronic cigarette companies were not party to the Master Settlement Agreement. Thus, the terms of that settlement cannot be imposed upon them involuntarily, even if electronic cigarettes were considered by the Attorneys General as meeting the MSA's definition of cigarettes.

This assertion is based on a new study which found that electronic cigarette use, like smoking, results in reduced levels of exhaled nitric oxide. As Dr. Glantz writes:

The Campaign for Tobacco-Free Kids, and the FDA, cannot simply rewrite the law because it was crafted improperly. They have to live within the statute, and within the constitution. And unfortunately, the anti-smoking groups screwed up (albeit intentionally). In other words, the tobacco companies are not evading the law. They are following the law.

Of course, this is the same thing as stating that cigarette smoking may be no worse than vaping in terms of its effects on pulmonary function.

Moreover, what scientific evidence is the FDA looking for in order to approve a simple claim that electronic cigarettes are safer than tobacco cigarettes? If the overwhelming current evidence is not sufficient, then no evidence will ever be sufficient because there is no further research that is necessary in order to draw this conclusion. It doesn't take a rocket scientist to figure out that a product which burns tobacco and produces tobacco smoke with more than 10,000 chemicals including more than 60 carcinogens and causes more than 400,000 deaths per year is more harmful than a product which merely heats and aerosolizes nicotine from a solution of propylene glycol.

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