Sixteen years ago, the leading tobacco companies resolved state lawsuits against them through a Master Settlement Agreement (MSA) that included restrictions on advertising and promotion as well as payments totaling more than $200 billion over 25 years. Last week three members of Congress—Sen. Dick Durbin (D-Ill.), Rep. Henry Waxman (D-Calif.), and Rep. Frank Pallone (D-N.J.)—argued that the MSA should be retroactively revised to cover electronic cigarettes, which were not marketed in the United States until 2007. You may wonder: How exactly would that work? It is a question to which the three legislators, all of whom have law degrees, evidently devoted no thought whatsoever.

In a letter to the 29 state attorneys general who last August urged the Food and Drug Administration to severely restrict e-cigarette advertising and marketing, Durbin et al. suggest "classifying e-cigarettes as cigarettes under the Master Settlement Agreement," which they claim "would stop the e-cigarette makers from marketing their products in ways that are appealing to kids." This proposal has at least two fatal flaws, which may explain why the attorneys general have never attempted it, even though the idea has been floated before.

First, as Michael Siegel notes on his tobacco policy blog, the MSA defines a cigarette, in part, as a product that contains tobacco. E-cigarettes do not contain tobacco. Durbin et al. argue that they sorta do, "because their key ingredient is nicotine, which is produced from tobacco leaves." By the same logic, THC is marijuana, quinine is cinchona bark, electricity is coal, milk is a cow, and maple syrup is a tree.

But never mind that. The other crucial problem that Durbin et al. seem to have overlooked is that the Master Settlement Agreement is, as the name implies, an agreement, meaning it is binding only on the parties that signed it. The MSA cannot possibly be applied to companies that not only did not agree to it but did not exist when it was drawn up.