Tobacco Reborn: The Rise of E-Cigarettes and Regulatory Approaches

68 Pages Posted: 2 Dec 2020 Last revised: 18 Aug 2021

See all articles by Daniel G. Aaron

Daniel G. Aaron

S.J. Quinney College of Law, University of Utah; Harvard Law School

Date Written: Aug 17, 2021


This paper examines e-cigarettes, FDA-regulated products which heat nicotine-containing fluid into an aerosol to be breathed into the lungs. Recent data show that e-cigarettes are used by about one-fifth of U.S. high schoolers. Given that we have, in the Surgeon General’s words, reached an epidemic of youth e-cigarette use, it is worth asking how a product within FDA jurisdiction became a serious threat to to 3.6 million youth.

This article will review the law surrounding e-cigarettes and the history of FDA’s attempts to regulate them. Administrative law doctrines instruct us that increased presidential control will rein in misbehaving agencies by allowing the people to vote out a president who improperly directs the administrative state. However, e-cigarettes present a potent counterexample. On multiple occasions, presidential control over FDA stymied essential tobacco regulations by increasing the influence of the tobacco industry over expert agency policymaking. Yet children harmed by these tobacco policies have no right to vote and little political clout with which to advocate for their interests. Ultimately, the emerging approach to regulating e-cigarettes stands in opposition to a looming historical context and a boiling epidemic of nicotine addiction. By painting the context of e-cigarettes in lush detail, drawing from history, law, medicine, and public health, this article will chart a path forward for e-cigarettes and other addicting products.

Keywords: E-Cigarettes, Public Health, FDA, Addiction, Regulation, Health Law, Tobacco, Nicotine

Suggested Citation

Aaron, Daniel, Tobacco Reborn: The Rise of E-Cigarettes and Regulatory Approaches (Aug 17, 2021). 25 Lewis & Clark L. Rev. 827 (2021), Available at SSRN:

Daniel Aaron (Contact Author)

S.J. Quinney College of Law, University of Utah ( email )

383 S. University Street
Salt Lake City, UT 84112-0730
United States

Harvard Law School ( email )

1563 Massachusetts Avenue
Cambridge, MA 02138
United States

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