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How Should E-Cigarettes Be Regulated?

E-Cigarettes FDA regulation

In a recent New York Times opinion piece, New York civil rights attorney Norman Seigel writes "In the absence of scientific evidence that e-cigarettes are harmful, the FDA must tread lightly." The op-ed addresses the most recent proposed regulations on the e-cigarette industry. These proposed regulations raise serious policy and civil liberties questions about the role of government in solving societal problems such as smoking.

In Seigel's view, the FDA should not overstep its authority and encroach on the principles and values of freedom which are the cornerstones of American society. In their statement regarding the proposed rules, the FDA themselves admit that there is still much ambiguity concerning electronic cigarettes, saying "We do not currently have sufficient data about e-cigarettes and similar products to determine what effects they have on the public health."

The editorial points out that back in 2010, a federal lawsuit was raised in a D.C. Court of Appeals over the FDA authority over e-cigarettes. That court remarked: "Regarding harm to third parties and to the public interest, the district court observed that the FDA had cited no evidence to show electronic cigarettes harmed anyone." Seigel suggests that without clear evidence of harm to the public caused by e-cigarettes, the FDA should not be so quick to impose regulations on this new and potentially beneficial technology and should focus instead on fulfilling its role by educating and informing the American public. It must respect people’s ability to choose for themselves what is in their best interest. Seigel added that "The FDA should recognize that e-cigarettes are not the same as traditional cigarettes, and that a different approach needs to be developed."

Last week's proposed FDA regulations on the industry were not met with much objection - particularly the requirement for health warnings stating that the product is derived from tobacco and contains nicotine as an addictive chemical. Responsible industry players seem to have no problem with other requirements for all ingredients to be listed on product labels and for prohibition of the sale of e-cig products to persons under the age of 18.

In closing, Seigel makes the observation that, without sufficient data indicating that e-cigarettes are harmful, the FDA should not advocate media restrictions applied to tobacco products because such restrictions would run afoul of the First Amendment.

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