Sobering story from Time magazine: The e-cig industry has won the regulatory battle.

Sobering because of two main reasons: There will be no FDA control over sugary, fruity flavourings for e-cigs and there will be no FDA control over e-cig marketing.

A couple of months ago, the FDA issued its draft regulations for e-cigs. It was a mixed bag. Fortunately, the FDA came right out and banned e-cig sales to minors (but did not ban Internet sales of e-cigs), but completely steered away from trying to control the marketing of e-cigs.

This was a big disappointment, because it’s become pretty obvious that e-cig companies (which are increasingly becoming cigarette companies) are marketing aggressively to young people, using sexy and “come hither” imagery, just like tobacco companies have done since Kingdom Come.

Time magazine jumped on the story, saying the proposed FDA regs were a big win for the e-cig industry, especially over the marketing of e-cigs. The Time article also brings up a point I have mentioned in previous blog posts, that the agency is likely afraid of a big lawsuit over the First Amendment in trying to limit e-cig marketing.

Stanton Glantz, one of my favourite anti-tobacco advocates, is quoted extensively in the Time article.

“The deeming rule that the FDA has proposed is very, very, very limited in its scope,” says Stanton Glantz, a cardiology professor at the University of San Fransisco and one of the most vociferous proponents of strict rules for e-cigs. “It requires a useless warning label and says they can’t be sold to kids under 18, but it doesn’t put any restrictions on internet sales, which means kids under 18 can easily get them. It has no restrictions on marketing at all.” This puzzles Glantz. “You would think that the Obama administration would be supporting tobacco control because it would reduce health care costs.” As far as Glantz is concerned, the administration has erred on the side of the tobacco interests.

Naturally, one of the biggest concerns among health advocates is children’s access to e-cigarettes—and marketing of e-cigs to teens is up 321%, as TIME recently reported. The Centers for Disease Control and Prevention estimates that almost 2 million students in the U.S. have tried e-cigarettes. Policies to address the issue run the gambit from the least controversial—like establishing an age restriction on purchasing e-cigs and child proof packaging—to the more divisive, like prohibiting marketing to teens, prohibiting internet sales, and restricting the use of kid-friendly candy-like flavors.

But even the most basic restrictions—like better product labeling, and child proofing—were absent from the FDA’s initial deeming rules, making other restrictions on advocates’ wish lists seem that much further away. “Any meaningful rules on marketing of e-cigarettes are years, and years, and years away,” says Glanz, pointing out that if restrictions were imposed, e-cig companies would likely sue over marketing restrictions on first amendment grounds.

A spokesman for an c-cig company had this predictably weasel word response:

Craig Weiss, the CEO of NJOY in Scottsdale, Arizona, one of the leading electronic cigarette brands, says there are appropriate curbs, but there is no reason e-cigarette marketing should be as strict as tobacco. “You are confusing the arsonist with the firefighter,” he says. “Why would you treat products that are part of the solution as products that are part of the problem?” he says. Though NJOY is careful not to make direct claims that their products can help smokers quit, Weiss is a big believer in the potential for electronic cigarettes to replace cigarettes. Weiss supports limits on the age of actors in ads and rules against e-cigs appearing in cartoons, but he rejects the idea that there is anything wrong with his ads, which do feature young adults.

Well, the problem, Craig, is that while e-cigs might be a solution for some adult smokers (the jury is out whether e-cigs are a very effective quitting tool) to quit smoking, they are not any kind of “solution” when 16-year-olds are using them instead of cigarettes.