Below is an overview of considerations and possible legal challenges to e-cigarette policies. For a comprehensive overview of these considerations, download the Playbook linked above.
Authority & Preemption
Ensure your state or jurisdiction has the authority to enact the regulation. While states have the authority to pass regulations restricting or prohibiting commercial tobacco sales or use, a local government's authority depends largely upon the authority a state has reserved for itself and what it has delegated to local governments through special legislation, home rule charters, or similar laws.
Local jurisdictions should investigate its state's tobacco regulatory scheme to ensure that the local government is not preempted from enacting tobacco or e-cigarette regulations.
“Takings” Under the Fifth Amendment of the U.S. Constitution
The Fifth Amendment of the U.S. Constitution states, in part: “[N]or shall private property be taken for public use, without just compensation.” This is commonly referred to as the “Takings Clause.”
There are two ways the government can take property under the Fifth Amendment:
- A possessory taking (which involves physical occupation, as in eminent domain) and
- A regulatory taking (which occurs when a law impedes a property owner’s investment so significantly that it amounts to a “taking” of the property).
E-cigarette manufacturers and vendors may argue that because these products make up a substantial portion of their sales, any state or local regulation that prohibits their sale constitutes a “taking.”
To determine whether or not the law constitutes a taking requires a fact-specific analysis of the nature of the action balanced against the interests involved.
First Amendment Challenges
Although the Tobacco Control Act allows states and localities to place some restrictions on tobacco marketing, the First Amendment still protects speech by tobacco companies, thus acting as a limitation on the FDA’s authority over marketing and advertising restrictions.
“Commercial speech” is one category of speech protected by the First Amendment. Commercial speech includes advertising, banners, logos, etc., and can include expressive conduct, such as how products are displayed in a store window.
The level of “protection” certain speech is afforded depends on the type of speech at issue, and the limitations the government places on that speech.
First Amendment protections are implicated when the government “compels” speech &emdash; e.g., when it requires a warning label on a package.
Future Possible Challenges
E-cigarettes are relatively new to the market in comparison to combustible cigarettes. The products and their marketing innovations continue to evolve, as does the phenomenal impact of social media.
The federal regulatory landscape of e-cigarettes may change in the future. Policymakers and regulators need to remain alert to all product, marketing, and regulatory actions, craft policies that can accommodate foreseeable changes, and update policies as necessary and appropriate for public health.
Other Regulatory Issues & Concerns
Unintended consequences. While any policy regulating e-cigarettes is a step in the right direction to protect the health of youth, unintended consequences can occur. For example, a ban on all flavored e-cigarettes including menthol could push nicotine-addicted youth to transition to menthol-flavored combustible cigarettes or flavored cigarillos or cigars, which are legally sold in most communities.
Regulating e-cigarettes as part of comprehensive commercial tobacco regulation will avoid unintended consequences, ease enforcement, and support the community’s overall public health goal.