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Representative Jackie Speier from California — a democrat — has proposed a bill focused on prohibiting electronic cigarette marketing that might target or appeal to kids. Despite many efforts to spin e-cigs as dangerous tobacco products by opponents, Speier’s bill surprisingly avoids arguing that e-cigs should be treated as tobacco products or that they should be regulated under the FDA’s authority to control them.

The FDA got the majority of its power in 1938 through the Federal Food, Drug, and Cosmetic Act. It’s under this act that the bill claims the FDA possesses authority to control e-cigs — rather than focusing on more recently received authority over tobacco products. This appears to make more sense than regulation under tobacco controls, but raises some very interesting questions.

For one, what aspect of electronic cigarettes makes them a threat to kids? I don’t ask this to argue that kids should be allowed to use e-cigs. I ask this because this would determine how control needed to be established. Is the argument that nicotine is addictive? If so, then potatoes, eggplants, and a variety of other vegetables would need to be reviewed. One eggplants contains about 5% of the nicotine content of one cigarette. This means there would have to be a threshold on what constitutes a dangerously addictive level of nicotine.

If the concern is that kids will use electronic cigarettes as a gateway to smoking (which many experts and studies already agree is not the case), then there would need to be a lot more proof that it is a legitimate concern — especially since e-cigs appear more likely to keep kids away from smoking.

If harm is the argument, there still needs to be a lot of study to justify nearly blanket restrictions on marketing. While nicotine poisoning is possible, the same can be said of caffeine. Two 5 hour Energy drinks contain about 400 mg of caffeine — more than enough to cause caffeine poisoning in a kid. Many are pushing for energy drink sales bans for kids for this very reason. Still, if caffeine is not controlled, it seems like controlling non-tobacco nicotine — may be just as hard.