Yale Journal on Regulation | March 12, 2015
Eric Lindblom, a Senior Scholar at Georgetown Law School’s O’Neill Institute for National & Global Health Law, has published an important new article entitled Effectively Regulating E-Cigarettes and Their Advertising – and the First Amendment in the Food & Drug Law Journal. (Full disclosure: Lindblom was my supervisor when I worked at the FDA Center for Tobacco Products in 2011-2012, and I provided some assistance with this article.) This article seeks to chart a middle ground between those who see e-cigarettes as a panacea and those who see them as a public health menace. It suggests that e-cigarettes could potentially serve a positive public health function—but only if they are regulated and their advertising and marketing is sharply limited. Delving into the complicated structure of the 2009 Tobacco Control Act, the paper explains how the FDA could use its regulatory authority to implement such restrictions without running afoul of the Supreme Court’s increasingly strict application of the commercial speech doctrine.