Regulation of commercial speech is a major component of federal regulation of tobacco products. Since adoption of federal tobacco legislation, the Food and Drug Administration has asserted regulatory authority over ENDS and other vaping products as “tobacco products,” subjecting them to the same regulatory regime as traditional tobacco products even though such projects appear to pose less of a threat to public health. Such regulation, and the restriction on truthful speech in particular, may be having negative consequences for public health. Barring producers from informing consumers about the relative risks of vaping products and their potential to reduce smoking eliminates a potentially powerful tool for consumer education. Such restrictions are constitutionally dubious under existing First Amendment jurisprudence and may undermine the protection of public health as well.


Keywords: tobacco, vaping, ENDS, e-cigarettes, public health, FDA, First Amendment, commercial speech

Publication Date


Document Type


Publication Information

Journal of Free Speech Law (forthcoming)