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Regulatory Options for E -Cigarettes / 3 While legal challenges to such policies can be anticipated in light of the e -cigarette industry's investment in price -related marketing strategies, a federal district court has recently upheld a local law prohibiting the sale of discounted tobacco products. 16 In early 2012, Providence, Rhode Island enacted an ordinance prohibiting licensed tobacco dealers from selling discounted tobacco products through coupon redemption and multi- pack offers." Tobacco industry stakeholders challenged the law on First Amendment and federal and state preemption grounds. In December 2012, a federal district court upheld the pricing ordinance, concluding that its prohibition against certain industry price discounting practices did not violate the First Amendment, and also was not preempted by federal or state law. 18 Although this decision has been appealed, and even if upheld, would not be controlling in all jurisdictions, Providence's promising early results may help support similar state or local laws to prohibit the deeply discounted sale of emerging tobacco products like e - cigarettes. Free Samples Regulatory Gap: Under the Tobacco Control Act, tobacco manufacturers are restricted from distributing free samples of "cigarettes, smokeless tobacco or other tobacco products." 19 At present, this restriction does not apply to e -cigarettes. Although the FDA has indicated that it intends to regulate electronic cigarettes as tobacco products, the agency has yet to issue regulations asserting jurisdiction over e -cigarettes or extending the Act's prohibition on free samples to electronic cigarettes. 20 • Regulatory Options: State and local governments could prohibit the distribution of all free sarnp2les of tobacco products, including e -cigarettes and other nicotine delivery systems. I Flavoring Regulatory Gap: Another disparity exists in the way flavored e -cigarette cartridges are regulated versus flavored cigarettes. Under the Tobacco Control Act, tobacco companies are prohibited from producing cigarettes containing any characterizing flavor other than tobacco or menthol.22 This prohibition is limited to flavored cigarettes, however. E - cigarette manufacturers can continue to market e -cigarette cartridges in a variety of candy -like flavors that appeal to youth (such as bubble gum, chocolate, and mint),23 and sell them at mall kiosks, where young people often congregate, as well as online, where safeguards against youth access can be breached more easily than in face-to-face purchases. • Regulatory Options: Although the Tobacco Control Act prohibits state and local governments from establishing tobacco product standards relating to the manufacture of tobacco products, it expressly preserves the authority of state and local governments to regulate the sale and distribution of tobacco products. 24 Tobacco Control Legal Consortium 875 Summit Avenue, Saint Paul, MN 551053076 wvm.publichealthlawcentecorg 651.290.7506