Senator Durbin Asks Attorneys General to Violate the Constitution and Misinterpret the Master Settlement Agreement to Reign in Electronic Cigarettes

I am all for regulating the marketing of electronic cigarettes so that it does not target youth. However, I submit that measures to accomplish this should represent legitimate (i.e., constitutionally valid) government actions.

Last Friday, Senator Dick Durbin (D-IL) and Representatives Henry Waxman (D-CA) and Frank Pallone (D-NJ) sent a letter to all the state Attorneys General requesting that they define electronic cigarettes as "tobacco products" under the Master Settlement Agreement (MSA) and thereby, they claim, make e-cigarettes subject to the advertising restrictions that the MSA poses on tobacco manufacturers.

The letter states: "we believe you could take a significant step in the battle against tobacco use by classifying e-cigarettes as cigarettes under the Master Settlement Agreement (MSA) with the tobacco companies. ... we are writing to urge you to consider using your authority under the MSA to take immediate actions against the efforts of e-cigarette companies to target youth."

The letter also states: "We believe e-cigarettes meet all the criteria for the definition of cigarette (and tobacco product) in the Master Settlement Agreement. .. They contain "tobacco, ... in any form" because their key ingredient is nicotine, which is produced from tobacco leaves."

The Rest of the Story

Stan Glantz has praised this action of these politicians. I, on the other hand, condemn it.

Why? Because, very simply, it is unconstitutional. It clearly violates the rights of electronic cigarette companies. Specifically, it makes the electronic cigarette companies parties to a contract that they didn't sign. The government cannot do that. No one can do that. A contract is an agreement that is approved by the participating parties. A contract between these parties cannot tell other parties what they may or may not do. The Master Settlement Agreement was signed by the Attorneys General and several participating manufacturers (mainly, the large tobacco companies). It cannot set rules for other companies that were not parties to the agreement.

Moreover, these politicians are completely misinterpreting the Master Settlement Agreement. They misinterpret the MSA in two ways.

First, e-cigarettes are clearly not "cigarettes" as defined by the MSA. In order to be classified as a cigarette under the MSA, a product must contain tobacco. However, e-cigarettes do not contain tobacco. The politicians try to get around this by arguing that because they contain nicotine, they contain tobacco, as nicotine is derived from tobacco. But this argument flies in the face of basic rules of statutory construction. If the intent of the MSA was to define all nicotine-containing products as tobacco products, then it would not have been necessary to include the additional clause specifying that tobacco products must not only contain nicotine, but also contain tobacco.

Second, even if the Attorneys General redefine electronic cigarettes as tobacco products, that does not make the e-cigarette companies subject to the marketing restrictions in the MSA. The marketing restrictions only apply to "participating manufacturers." Because e-cigarette companies are obviously not "participating manufacturers," they cannot be subject to the MSA's marketing restrictions, regardless of how "tobacco products" are defined.

The rest of the story is that e-cigarette opponents like Stan Glantz and these politicians are so zealous about demonizing electronic cigarettes that they are willing to violate constitutional principles and basic legal rights of companies in order to achieve their aims.