Layers of Law: The Case of E-Cigarettes

Abstract

This paper, written for a symposium on "Layers of Law and Social Order," connects the current debate over the regulation of electronic cigarettes with socio-legal scholarship on law, norms, and social control. Although almost every aspect of modern life that is subject to regulation can be seen through the framework ‘layers of law,’ e-cigarettes are distinguished by the rapid emergence of an unusually dense legal and regulatory web. In part, the dense fabric of e-cigarette law and regulation, both within and beyond the US, results from the lack of robust scientific and epidemiological data on the behavioral and health consequences of e-cigarettes, without which regulators can justify a wide range of legal interventions. In the absence of compelling science that supports particular types of policies, regulators in different jurisdictions can, with equal justification, pursue either permissive or prohibitionary regulations. The result is a broad spectrum of policy interventions, a number of which are discussed in the paper.

Keywords: E-cigarettes, e-cigs, vaporizers, vaping, e-juice, tobacco substitutes, resurgence of smoking, denormalization, tobacco control policy, public health, FDA, marketing, advertising, Japanese regulation