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Companies use brand websites as a promotional tool to engage consumers on the web, which can increase product use. Given that some products are harmful to the health of consumers, it is important for marketing associated with these products to be subject to public health surveillance. However, terms of service (TOS) governing the use of brand website content may impede such important research.
The aim of this study is to explore the TOS for brand websites with public health significance to assess possible legal and ethical challenges for conducting research on consumer product websites.
Using Statista, we purposefully constructed a sample of 15 leading American tobacco, alcohol, psychiatric pharmaceutical, fast-food, and gun brands that have associated websites. We developed and implemented a structured coding system for the TOS on these websites and coded for the presence versus absence of different types of restriction that might impact the ability to conduct research.
All TOS stated that by accessing the website, users agreed to abide by the TOS (15/15, 100%). A total of 11 out of 15 (73%) websites had age restrictions in their TOS. All alcohol brand websites (5/15, 33%) required users to enter their age or date of birth before viewing website content. Both websites for tobacco brands (2/15, 13%) further required that users register and verify their age and identity to access any website content and agree that they use tobacco products. Only one website (1/15, 7%) allowed users to display, download, copy, distribute, and translate the website content as long as it was for personal and not commercial use. A total of 33% (5/15) of TOS unconditionally prohibited or put substantial restrictions on all of these activities and/or failed to specify if they were allowed or prohibited. Moreover, 87% (13/15) of TOS indicated that website access could be restricted at any time. A total of 73% (11/15) of websites specified that violating TOS could result in deleting user content from the website, revoking access by having the user’s Internet Protocol address blocked, terminating log-in credentials, or enforcing legal action resulting in civil or criminal penalties.
TOS create complications for public health surveillance related to e-marketing on brand websites. Recent court opinions have reduced the risk of federal criminal charges for violating TOS on public websites, but this risk remains unclear for private websites. The public health community needs to establish standards to guide and protect researchers from the possibility of legal repercussions related to such efforts.
A growing proportion of morbidity and mortality globally can be attributed to the commercialization of products that are harmful to health. Products such as tobacco, alcohol, fast food, and firearms account for an increasing proportion of preventable deaths, a trend referred to as the
The industries that manufacture these products continue to rely heavily on marketing to attract and retain consumers to maintain and grow their profit margins; these actions contribute to the overall burden of disease caused by their products [
The research literature on marketing practices for potentially harmful products at the point of sale, on television, and in print media is longstanding and robust [
Advertising on brand websites has already started to attract the attention of researchers. Research on alcohol brand websites, for example, has documented strategies that utilize youth culture, including computer games, competitions, downloadable content, sponsored parties, fashion shows, and sporting events [
The use of e-marketing is also potentially problematic because it is more difficult for regulatory authorities to monitor and regulate web-based space, resulting in less oversight [
E-marketing, although clearly a source of concern for public health, poses challenges for researchers. Websites are the property of corporations that draft TOS that can legally shape how site users are allowed to engage with content. The
Frischmann and Selinger [
When TOS are actually read, it becomes clear that many activities necessary to conduct research are often restricted. Preliminary exploration found TOS on brand websites that prohibit users, for example, from downloading (eg, saving copies of content for future reference) and sharing material, tasks necessary to conduct research. The terms of entry into web-based spaces designed by corporations are more explicit and seem to hold the potential for greater enforcement in the web-based domain as compared with conditions for entry into retail spaces in the physical environment. The uncertain legal nature of TOS may also impact the comfort level of the researchers who study web-based spaces, and some researchers have expressed fear that this uncertainty might have chilling effects on research [
Little attention has been paid to establishing appropriate norms for entering web-based spaces for the purpose of understanding the space in and of itself. Although a recent publication [
Currently, researchers are leaving themselves potentially vulnerable to legal issues by conducting research that might violate the TOS of websites. Given the public health importance of monitoring product marketing in web-based spaces, in this study, we describe the types of activities that are and are not allowed by TOS across multiple product types and what types of restrictions are being put on website access. We also consider how this might differ by product type and discuss implications of restrictions included in TOS for research and the ethical and legal ramifications of not adhering to TOS, given recent litigation.
We searched Statista, the “statistics portal for market data, market research, and market studies” [
For cigarette brands, the 3 US market leaders, Marlboro, Newport, and Camel, were all American companies with official websites created by the company. Marlboro and Newport were selected for the sample. Camel was excluded because both Camel and Newport were owned by R. J. Reynolds Tobacco Company and had the same TOS. Data on US market leaders for beer brands showed that Bud Light and Coors Light occupied the largest portion of the beer market and were retained for the sample. Statista did not have data on distilled spirits as a general category; however, it had existing data on the top whiskey brands by market share, with Jack Daniels, Crown Royal, Fireball, and Jim Beam being the market leaders. The British company Diageo owns Crown Royal and was excluded, whereas Fireball, Jack Daniels, and Jim Beam were retained as US-owned brands. Although Statista did not have data on the top market leaders in the firearms industry, it did provide data on the estimated global revenue for firearms made for the US market, which was used as a proxy for establishing the leading companies. The top 3 firearm manufacturers—Remington, Smith and Wesson, and Sturm Ruger—are all US companies with official websites and were retained for this sample. Similarly, the top companies producing psychiatric drugs were also determined using Statista data on revenue from top-selling psychiatric drugs in the United States. The top brand, Lyrica, was retained for the sample. The second brand, Vyvanse, stated in its TOS that it is governed by British, rather than American law, and the website was excluded from the sample for this reason. Invega Sustenna was retained as this brand had an official website, and the jurisdiction listed in its TOS was within the United States. Revenue from sales was also used to determine the top fast-food brands. McDonalds, Starbucks, and Subway were retained for this sample as the jurisdiction listed in their TOS was within the United States, and all the brands had official websites (
Acquisition of website sampling using data from Statista.
Product type and metric used/Top brands listed | Webcite reference for the brands selected | Date of last TOSa update (as of July 2018) | Date of last TOS update (as of July 2020) | |
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Marlboro, 41 | [ |
May 2014 | May 2014 |
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Newport, 13 | [ |
August 17, 2017 | August 17, 2017 |
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Camel, 8 | —b | — | — |
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Bud Light, 18 | [ |
No date provided | January 1, 2020 |
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Coors Light, 10 | [ |
May 22, 2018 | January 1, 2020 |
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Jack Daniels, 13 | [ |
March 15, 2018 | March 15, 2018 |
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Crown Royal, 12 | — | — | — |
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Fireball, 8 | [ |
June 21, 2017 | June 21, 2017 |
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Jim Beam, 8 | [ |
October 29, 2008 | January 31, 2020 |
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Remington Outdoor, 939 | [ |
April 1, 2017 | No date provided |
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Smith and Wesson, 552 | [ |
April 1, 2017 | June 1, 2020 |
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Sturm Ruger, 551 | [ |
September 1, 2010 | September 1, 2010 |
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Lyrica, 4.4 | [ |
No date provided | No date provided |
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Vyvanse, 3.1 | — | — | — |
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Invega Sustenna, 1.3 | [ |
November 4, 2016 | November 4, 2016 |
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McDonalds, 36.4 | [ |
March 13, 2017 | March 13, 2017 |
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Starbucks, 15.8 | [ |
October 27, 2017 | October 2019 |
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Subway, 14.0 | [ |
June 14, 2018 | January 1, 2020 |
aTOS: terms of service.
bNot included in the sample.
Official websites for each brand were located by searching the brand name with the word
All TOS were downloaded and coded in Microsoft Word (Word version 16.34) employing line-by-line open coding. After reading the TOS and conducting an initial round of coding for major themes, codes were discussed with the study team at multiple meetings, and codes were added and refined per group discussion (
Age restrictions
≥21 years, legal age of product consumption, ≥18 years of age or ≥age of majority, ≥13 years with parental consent, ≥13 years, or no age restrictions
Other access restrictions
Users must be a user of our product to access this website, and/or users must agree to receive promotional materials
Accepting TOS (terms of service)
By accessing this website, users agree to abide by the TOS (use of all capital letters were sometimes used to emphasize this point)
TOS can change at any time
Users acknowledge that TOS can change at any time, users will be notified of changes to TOS, or users are expected to check TOS for any changes during each website visit
Restrictions on sharing account information
It is the user’s responsibility to keep log-in credentials confidential
User information accuracy
All information provided by the user must be accurate
Prohibited and allowable user actions with website material
A series of codes indicating when or if copying, displaying, distributing, downloading, transmitting, translating, and republishing is prohibited or allowed
Applicable local laws
Users agree to abide by applicable local laws while using this website
Choice of law
TOS are interpreted and governed by the laws in, for example, North Carolina
Restrict user access
The company can restrict user access to this website for any reason at any time
Allowable use
Commercial, personal, private, noncommercial, etc
Actions taken if user violates TOS
Having the user’s internet protocol address blocked, taking legal action against the user, and/or deleting user content from the website
All tobacco (2/2, 100%) and alcohol (5/5, 100%) websites presented with a pop-up window or a registration page when users first enter the website. Both tobacco websites had registration windows, whereas all 5 alcohol websites had pop-up windows. Pop-ups on alcohol websites only required the user to input a date of birth or confirm that they were aged ≥21 years, with no verification process. Two alcohol websites also asked for geographical location. All but 3 websites (12/15, 80%)—2 firearm websites and 1 pharmaceutical website—explicitly stated an age requirement for user access (
Number of websites with age restriction on website access.
Product type | Age ≥21 years | Legal age of product consumption | Age ≥18 years | Age ≥13 years with parental consent if under 18 years or the legal age of majority | Age ≥13 years | No age restrictions |
Tobacco (n=2), TOSa number, n (%) | 2 (100) | 0 (0) | 0 (0) | 0 (0) | 0 (0) | 0 (0) |
Alcohol (n=5), TOS number, n (%) | 2 (40) | 3 (60) | 0 (0) | 0 (0) | 0 (0) | 0 (0) |
Pharmaceuticals (n=2), TOS number, n (%) | 0 (0) | 0 (0) | 1 (50) | 0 (0) | 0 (0) | 1 (50) |
Fast food (n=3), TOS number, n (%) | 0 (0) | 0 (0) | 0 (0) | 3 (100) | 0 (0) | 0 (0) |
Firearms (n=3), TOS number, n (%) | 0 (0) | 0 (0) | 0 (0) | 0 (0) | 1 (33) | 2 (67) |
aTOS: terms of service.
The TOS for 10 websites (10/15, 67%; 2 tobacco, 4 alcohol, 1 pharmaceutical, 2 fast food, and 1 firearm) held users responsible for keeping their log-in credentials (should they create an account) private, and the TOS for 6 websites (6/15, 40%) specified that information used to create an account must be accurate (2 tobacco, 2 alcohol, and 2 food). The Newport TOS, for instance, states, “You must sign-up online to create an account to access and use the Site. You agree not to use any false, inaccurate, or misleading information when signing up for your accounts.” Newport is also the only website in the sample that specifies that they independently verify that registrants are aged ≥21 years.
All website TOS (15/15,100%) had language stating that accessing the website required users to accept the TOS, and all but one pharmaceutical company (14/15, 93%) said that the TOS could change at any time and that users may or may not be notified of this fact (
Accepting terms of service and the possibility of changing terms by accessing websites.
Product type | By accessing the website, users agree to the TOSa | TOS can change at any time | The user is responsible for checking the TOS for changes and is bound by the changes | Website will post announcements when the TOS change and users are bound by the changes | Used all capitalization to emphasize that by accessing the website, the user agrees to the TOS |
Tobacco (n=2), TOS number, n (%) | 2 (100) | 2 (100) | 1 (50) | 1 (50) | 0 (0) |
Alcohol (n=5), TOS number, n (%) | 5 (100) | 5 (100) | 4 (80) | 1 (20) | 3 (60) |
Pharmaceuticals (n=2), TOS number, n (%) | 2 (100) | 1 (50) | 1 (50) | 0 (0) | 0 (0) |
Fast food (n=3), TOS number, n (%) | 3 (100) | 3 (100) | 2 (67) | 1 (33) | 1 (33) |
Firearms (n=3), TOS number, n (%) | 3 (100) | 3 (100) | 3 (100) | 0 (0) | 2 (67) |
aTOS: terms of service.
Language requiring users to comply with applicable local laws in addition to the terms stated in the TOS was common (2 tobacco, 4 alcohol, 1 pharmaceutical, 2 fast food, and 3 firearms; 12/15, 80%). All TOS (15/15, 100%) also specified a state within the United States whose laws would govern and interpret the TOS and serve as a location for any future litigation. Virginia, North Carolina, Missouri, Illinois, Kentucky, New York, New Jersey, Washington, Connecticut, and Massachusetts (10 states) were listed for the 15-website sample used in this study.
With only 2 exceptions (1 pharmaceutical and 1 alcohol; 13/15, 87%), all websites stated that they could revoke a user’s access at any time, without providing a justification. A total of 73% (11/15) TOS listed specific consequences for breaking or violating the TOS, including having the user’s internet protocol address blocked so they could no longer access the website; pursuing legal action against the user, resulting in civil or criminal penalties; terminating log-in credentials; and deleting user content from the website (2 tobacco, 3 alcohol, 2 pharmaceutical, 2 fast food, and 2 firearms).
Each TOS further specified what users were and were not allowed to do with the content of the website. Most of the TOS prohibited using website content for commercial purposes, and all but 3 TOS specified that website material could only be used for personal or individual or noncommercial purposes (1 tobacco, 4 alcohol, 2 pharmaceutical, 2 fast food, and 3 firearms; 12/15, 80%).
Website TOS described specific restrictions on how website content could be used (
Prohibited or allowable use of website content.
Brand name | Display website content | Download website content | Copy website content | Distribute website content | Translate website content |
Marlboro | Prohibited | In circumstances where specific sections of the website say you can use website materials offline, it must be for personal noncommercial purposes | Prohibited | Prohibited | Prohibited |
Newport | Prohibited | Prohibited (all actions other than viewing are prohibited unless otherwise specified) | Prohibited | Prohibited (all actions other than viewing are prohibited unless otherwise specified) | Prohibited (all actions other than viewing are prohibited unless otherwise specified) |
Bud Light | Prohibited without prior permission | Not specified | Prohibited without prior permission | Prohibited without prior permission | Not specified |
Coors Light | Not specified | Not specified | Not specified | Prohibited without prior permission | Not specified |
Jim Beam | Prohibited without prior permission | Allowed for noncommercial, lawful, and personal use with copyright retained | Prohibited without prior permission | Prohibited without prior permission | Prohibited without prior permission |
Jack Daniels | Not specified | Allowable for one copy for personal, noncommercial use with copyright retained | Prohibited for commercial use | Prohibited for commercial use | Prohibited |
Fireball | Prohibited without prior permission | Allowable for personal, noncommercial use with copyright retained and no modifications | Not specified | Prohibited without prior permission | Not specified |
Lyrica | Prohibited without prior permission | Allowable for noncommercial individual references with copyright retained | Allowable for noncommercial individual references with copyright retained | Prohibited without prior permission | Not specified |
Invega Sustenna | Prohibited for commercial use without prior permission | Allowable for personal, noncommercial purposes with copyrights retained | Prohibited for commercial use without prior permission | Allowable for personal, noncommercial purposes with copyrights retained | Prohibited for commercial use without prior permission |
McDonalds | Allowable for personal, noncommercial purposes | Not specified | Prohibited for commercial use | Prohibited for commercial use | Prohibited |
Starbucks | Not specified | Not specified | Not specified | Prohibited | Not specified |
Subway | Prohibited for commercial use | Not specified | Prohibited without prior permission | Prohibited without prior permission | Prohibited without prior permission |
Remington Outdoor | Allowable occasionally with an insubstantial portion of the content for noncommercial purposes with copyrights retained and including “Used with permission from Remington” | Prohibited | Prohibited | Allowable occasionally with an insubstantial portion of the content for noncommercial purposes with copyrights retained and including “Used with permission from Remington” | Not specified |
Sturm Ruger | Prohibited without prior permission | Allowable for personal and authorized commercial use | Allowable for personal and authorized commercial use | Prohibited without prior permission | Not specified |
Smith and Wesson | Not specified | Allowable for personal, noncommercial, and informational use | Prohibited without prior permission | Prohibited | Not specified |
Our exploration of TOS has revealed several important conclusions and raised some significant insights that we will discuss in the context of recent litigation: (1) research on web-based spaces is complicated by the existence of TOS in that they restrict activities necessary for research; (2) commercial entities are creating spaces on the web and some use TOS to try to restrict access to those spaces; and (3) research on private web-based spaces is ethically justifiable, regardless of whether the activities necessary to conduct this research are allowed under TOS agreements, but this research is legally questionable, so how should researchers proceed? Companies already have the financial power to aggressively market their products both on and off the web; in addition, they also have the power to define what is and is not allowed regarding the use of their website material via TOS [
TOS are complicated and cloud the legality of research on consumer product websites. It is important for regulatory agencies to have data on websites to make informed marketing regulations. The FDA, for instance, calls on members of the public, including researchers, to report marketing violations in Section 3.1.4 of the
Most of the explored TOS also state that the company can restrict access at any time, sometimes for any reason. If a company chooses to do this in the midst of data collection, it could impose a significant barrier. None of the TOS in this sample provided any information regarding an appeals process to contest restricted access. It is possible that some companies might intentionally restrict access if they think a user is accessing the website for research purposes that might reflect badly on the company, using their TOS-stated right to restrict access at any time and/or for any reason as a rationale.
Researchers could try to create a protocol that would follow the TOS for all the commercial websites they were interested in studying. However, attempting this could be difficult, as TOS can vary considerably across websites and include legal jargon [
In addition, one of the most consistent finding across product type is terms stating that website content can only be used for personal, noncommercial use. It is unclear if research fits in this category. It seems fairly clear that it is not
We must then attempt to untangle what companies claim is binding in their TOS, compared with what the US courts have upheld as legally binding during litigation to better understand if researchers are truly bound by the limitations imposed by TOS. The Computer Fraud and Abuse Act (CFAA) is a federal law that prohibits accessing a computer without authorization or in a manner that exceeds authorization, which can be interpreted as a federal prohibition on TOS violations [
Variability in the jurisdictions selected for governing the TOS and litigation may impact what state civil charges companies could bring for researcher trespass. Companies largely control the state where litigation will occur, and different states may have different laws governing what constitutes trespass and the consequences for trespassing. This introduces more uncertainty in terms of what research activities could result in civil charges.
Although the memorandum in
If researchers are convinced of the public health need to surveil private websites but are not able to do so while adhering to TOS, there are potentially incompatible legal and ethical issues to weigh. The ethical issues raised by such surveillance research are limited to the extent that surveillance activities do not seek to analyze interaction between users but rather seek to document the content of the website as it is designed by companies. In other words, it is a commercial entity rather than an individual who is being surveilled. From an ethical perspective, it is arguable that corporate actions do not warrant the same protection as human subjects, with the result that corporations may not be able to claim the right to autonomy from research participation. There is precedence for treatment of commercial organizations differently from individuals in research; company names are often used in academic publication, and there is no existing standard stating that companies should not have identifiable information disclosed.
The legal issues underlying research on websites vary in magnitude depending on whether the website is public, where anyone can create log-in credentials or access website content without a log-in, or private, where websites require authentication of provided information and apply constraints regarding who is allowed to create log-in credentials. The legal issue of research on public websites appears to be more limited. The biggest threat, violation of the CFAA, has been largely removed, and civil charges at the state or federal level seem unlikely when no damage is done to the websites of interest. Research on public websites should be encouraged and expanded to provide the public health community with a better understanding of e-marketing tactics and opportunities to inform marketing regulations that would better protect public health. This is especially important in the present moment when research requiring face-to-face interaction is limited by the ongoing pandemic. The legal issue of research on private websites presents a greater challenge. Even if a court was to eventually rule that violating TOS on private websites for public health research is not a violation of the CFAA, being sued and facing the litigation that follows is time consuming and has the potential to hurt the credibility and reputation of the researcher. Such damage might reduce the likelihood of promotion or achieving tenure if it is costly for the institution to defend the researcher. This is particularly problematic for private tobacco websites, as the tobacco industry has a long history of targeted and aggressive marketing of a product that is intrinsically harmful to users. Although account requirements may ostensibly be to responsibly keep out youth and nonsmokers, it also limits the access of the researchers and makes their access potentially illegal. Further, there is nothing stopping other companies that sell harmful products from putting up similar restrictions.
This study has also revealed the involvement of research institutions and universities as key stakeholders in decisions regarding research involving TOS violations. The expectations for researchers need to be clearly defined and understood in the various relevant offices of the university such that important research can be undertaken in such a way that the institution is comfortable with and can (and will) stand behind the researchers in the case of industry action. Currently, these issues are beyond the scope of what institutional review boards perceive as their purview, leaving researchers with few resources for guidance on questions of both ethics and legal issues [
We would conclude that violating TOS to conduct public health research on product websites is not ethically questionable; rather, given the public health significance of e-marketing, we may be ethically bound to conduct such research, regardless of whether it occurs on public or private websites. This conclusion has similarly been reached by the Association for Computing Machinery's Committee on Professional Ethics in their Code of Ethics and Professional Conduct, which states that TOS and other internet regulations should be followed unless there is a “compelling ethical justification to do otherwise” [
This study explored a small and purposefully selected sample of commercial product website TOS. It is possible that we missed variability in TOS that might be present on other types of websites. We also limited our sample to US companies, and TOS for companies within the United States might be different from the website TOS for companies in other countries, and caution should be used when attempting to generalize these results. The TOS observed during this study were downloaded and analyzed in July 2018. As of July 2020, 7 websites have updated their TOS. A brief review of updated TOS shows that very little has changed in terms of allowable activities with website material. The only exception to this was Jim Beam. Jim Beam added a clause that “You may print or download one copy of a reasonable number of pages of this Website for your own personal, noncommercial use and not for further reproduction, publication, or distribution” and some language allowing app download. We also employed confirmatory coding, rather than blind double-coding, which may have biased the second coder. Given that we were unable to access the content for tobacco websites, we were unable to conduct a content analysis to determine if our hypothesis that websites with more problematic content would be those with stricter TOS was correct.
In addition, none of the coders were lawyers, although lawyers were consulted to ensure that terms were coded appropriately and their significance was understood. As noted by others who have studied TOS and other similar contracts, terms can approach incomprehensibility, even for legal experts [
This study was limited to TOS contracts and did not include the evaluation of privacy policies. A privacy policy is a “legal document that discloses some or all of the ways a party gathers, uses, discloses and manages a customer's data” [
E-marketing on brand websites is an important area for public health surveillance to monitor; however, TOS complicate this endeavor by restricting access and prohibiting activities needed to conduct research. Recent court opinions have reduced the risk of federal criminal charges for violating TOS on public websites, but this risk remains unclear for private websites. Researchers already engaged in research on private websites are putting themselves in danger of being sued, and their affiliated institutions may or may not support them in court. It is critical that the public health community establishes standards for conducting research on e-marketing that supports this important public health issue.
Computer Fraud and Abuse Act
Food and Drug Administration
terms of service
This work was supported by funding from Bloomberg Philanthropies’ Bloomberg Initiative to Reduce Tobacco Use and the Practical Ethics Grant from the Johns Hopkins Berman Center for Bioethics. CW was supported by T32 CA009314 during publication development. Christopher Bavitz, Juris Doctor; William Walker; and Leo Ding from the Cyberlaw Clinic at the Harvard School of Law assisted with legal research and reviewed this manuscript to ensure that the legal context the authors provided was accurate.
MD holds equity in Sickweather Inc and has received consulting fees from Bloomberg LP and Good Analytics Inc. These organizations did not have any role in the study design, data collection and analysis, decision to publish, or preparation of the article. MBM serves as a paid expert witness in litigation sponsored by the Public Health Advocacy Institute against RJ Reynolds. This arrangement has been reviewed and approved by the Johns Hopkins University in accordance with its conflict of interest policies.