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Regulatory Options for E -Cigarettes / 5 <br />are not burned, but "vaped," are generally not covered under these laws. Using e - <br />cigarettes in public may lead conventional smokers to assume that smoking is permitted <br />in such locations and nonsmokers to believe that a smoke-free law is being violated. <br />Because of this, several health organizations recommend that the use of electronic <br />cigarettes be prohibited in public places and workplaces. 34 <br />• Regulatory Options: Local and state governments could include e -cigarettes hi their <br />smoke- and tobacco -free restrictions by revising definitions of "smoking" or "tobacco <br />products" to expressly cover e -cigarettes and other electronic nicotine delivery systems. <br />Point -of -Sale Warnings, Marketing Restrictions, & Broad Sales Prohibitions <br />Regulatory Gap: The Federal Cigarette Labeling and Advertising Act 35 limits the <br />authority of state and local governments to regulate the advertising and promotion of <br />cigarettes; however, no federal statute limits the authority of local or state governments to <br />regulate the advertising and promotion of non -cigarette tobacco products. In addition, as <br />discussed above, the Tobacco Control Act expressly preserves state and local government <br />authority to regulate the sale of tobacco products. Therefore, state and local governments <br />are able to warn consumers of the dangers of using electronic cigarettes, regulate the <br />advertising or promotion of e -cigarettes, and regulate the sale of e -cigarettes without <br />risking federal preemption concerns. <br />Regulatory Options: To determine the most effective options for regulating the sale and <br />marketing of e -cigarettes or for warning consumers about the use of these products, state <br />and local governments need to analyze their jurisdiction -specific needs, priorities, and <br />goals. Possible policy options include posting health warnings at the point-of-sale, 36 <br />imposing marketing restrictions, and prohibiting the sale of all electronic cigarettes. 37 <br />Although federal statutes should not pose a barrier for state and local policies restricting <br />the sale and marketing of e -cigarettes, such laws will most certainly be challenged on the <br />basis that they violate state or federal constitutional provisions related to free speech or <br />interstate commerce. 38 Although it is important to work with an attorney when pursuing <br />any policy options, the legal issues surrounding the First Amendment are complicated, <br />and jurisdictions must consult with legal counsel before pursuing these types of policies. <br />Contact Us <br />Please feel free to contact the Tobacco Control Legal Consortium at (651) 290-7506 or <br />publichealthlaw@wmitchell.edu with any questions about the information included in this fact <br />sheet or to discuss local concerns you may have about implementing these policy options. <br />The Tobacco Control Legal Consortium provides information and technical assistance on issues <br />related to tobacco and public health. The Consortium does notprovide legal representation or <br />advice. This document should not be considered legal advice or a substitute for obtaining legal <br />advice f om an attorney who can represent you. We recommend that you consult with local legal <br />counsel before attempting to implement any of these measures. <br />Tobacco Control Legal Consortium 875 Summit Avenue, Saint Paul, MN 551053076 wwm.publichealthlawcenter.org 651.290.7506 <br />