Effectively Regulating E-Cigarettes and Their Advertising— and the First Amendment

There is a vigorous discussion in the public health community over how to regulate e-cigarettes and their marketing. Based on the fact that e-cigarette use directly mimics smoking but is less harmful to users and nonusers, some public health experts favor a soft approach. They do not want regulation to interfere with the potential of e-cigarettes to help smokers quit or to help smokers switch to a harm-reducing way to consume nicotine, and want to err on the side of being more permissive. Other public health experts favor a harder approach. They point to the fact that e-cigarette use is addictive and, at a minimum, still produces significant harms and risks compared to no tobacco or nicotine use at all. They also raise concerns that e-cigarette marketing can prompt some smokers to switch to e-cigarettes or to dual use instead of quitting all tobacco or nicotine use; increase relapse into nicotine addiction among former smokers; and increase youth and adult initiation into nicotine addiction, which could serve as a gateway into addicted smoking. They want a more strict approach, at least until more is known about e-cigarette harms and their impact on initiation, cessation and other use trends.

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