WASHINGTON --Last week, Rep. Henry A. Waxman (D-Calif.), Sen. Tom Harkin (D-Iowa), and Rep. Peter Welch (D-Vt.) sent letters to their states' attorneys general urging them to classify electronic cigarettes as cigarettes under the terms of the Tobacco Master Settlement Agreement (MSA). If the AGs comply with the request, e-cigarettes would face the same restrictions on the advertising and marketing the MSA currently applies to combustible cigarettes.
Waxman, Harkin and Welch cited Centers for Disease Control & Prevention (CDC) data on youth consumption of e-cigarettes as their driving motivation to take action.
"We hope you will consider taking this much-needed step in the ongoing battle against tobacco products," the letter said. "The MSA gives you a powerful tool to stop e-cigarette makers from targeting youth, and we urge you to consider using it."
Falling under the MSA would also effectively end brand name sponsorships, outdoor advertising (including transit), branded merchandise and product sampling (except in adult-only establishments).
"By taking action to apply the MSA to e-cigarettes," the letter concluded, "you could make a giant stride in protecting kids from a lifelong addiction to nicotine."
Of course there are many problems with this request, as highlighted in Dr. Michael Siegel's Tobacco Analyses Blog.
"I understand the venom that these policy makers have for electronic cigarettes because they look like cigarettes," wrote Siegel, a professor of community health sciences at the Boston University School of Public Health. "However, their desire to protect tobacco cigarettes from competition from these safer products is not enough to justify urging their state attorneys general to trample on the Constitution."
One of the glaring issues is that the MSA clearly defines cigarettes as products containing tobacco--which e-cigarettes do not. Additionally, contract law requires that a mutual agreement between parties and the MSA predates the existence of most e-cigarette companies.
"Thus, the terms of that settlement cannot be imposed upon them involuntarily, even if electronic cigarettes were considered by the attorneys general as meeting the MSA's definition of cigarettes," Siegel said.
If these states were to overlook these problems, Siegel argued that by entering into a compact with other states without getting the consent of Congress, these states would be in violation of the Compact Cause of the Constitution.
"What these members of Congress are asking the attorneys general to do is to trample on the Constitution," said Siegel. "They are asking the attorneys general to violate the established laws of their state by not only ignoring the clear language of the MSA, but by illegally enforcing a contract on parties that did not consent to that contract in the first place."
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