Norman Siegel is a civil rights and civil liberties lawyer in New York City.

The most recent Food and Drug Administration proposed regulations affecting e-cigarettes raise serious policy and civil liberties questions about the role of government when it attempts to address a societal problem such as smoking.

The F.D.A. should not overstep its authority and encroach on the principles and values of freedom and liberty that are the cornerstones of America. In the regulations, the F.D.A. states that we "do not currently have sufficient data about e-cigarettes and similar products to determine what effects they have on the public health." In a 2010 federal lawsuit that raised the issue of the F.D.A.’s authority over e-cigarettes, the D.C. Court of Appeals remarked that "regarding harm to third parties and to the public interest, the district court observed that the F.D.A. had cited no evidence to show electronic cigarettes harmed anyone."

The F.D.A. should recognize that e-cigarettes are not the same as traditional cigarettes, and that a different approach needs to be developed.

In the absence of scientific evidence that e-cigarettes are harmful, the F.D.A. must tread lightly. At this point, the F.D.A. should educate and inform the public. It must respect people’s ability to figure out what is in their best interests. Then, gather and study the emerging data in order to determine whether electronic cigarettes are harmful. If the evidence confirms harm, then the F.D.A. would have a basis for rules similar to New York City’s recently enacted ban on e-cigarettes in public places. The F.D.A. should recognize that e-cigarettes are not the same as traditional cigarettes, and that a different approach needs to be developed.

Presently there are no serious industry objections to displaying health warnings such as: "This product contains nicotine derived from tobacco. Nicotine is an addictive chemical." There is also disclosure of ingredients in e-cigarettes and most state legislatures and sellers agree on making 18 the minimum age of purchase. However, without sufficient data indicating that e-cigarettes are harmful, the F.D.A. should not advocate media restrictions applied to tobacco products. That would run afoul of the First Amendment.



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