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The FDA’s Slow Motion Ban of E-Cigarettes
Last year at my blog Overlawyered I wrote about one of the rare instances in which a widely watched health indicator was headed rapidly in a favorable direction:
Actual cigarette smoking among teens, the kind that requires inhaling carcinogenic products of combustion, is down a startling 25 percent in one year and nearly 42 percent since 2011. The reason is the rapid substitution of vaping or e-cigarettes, which hold singular promise as a harm-reduction measure for those drawn to the nicotine habit. Great news, right?
Well, not great news if you’re the present leadership of the federal Centers for Disease Control (CDC), whose director Thomas Frieden has railed against vaping, or the federal Food and Drug Administration, which has now published regulations likely to wipe out most or all of the vaping option in what Jacob Sullum describes as a “slow-motion ban.”
Under the new rules, even products currently sold on the market will have to be withdrawn unless their makers, mostly small companies, care to venture on an FDA approval process that can cost $1 million and up per item. Any resulting applications will result in permission to sell only if the agency decides the product is a net safety improvement on current offerings. And that permission will be at best chancy because the FDA, following Frieden’s lead but in contrast with the views of many others in the public health field, refuses to acknowledge vaping as a safer alternative to tobacco smoking, even though large numbers of smokers turn to vaping with exactly that goal in mind. Jared Meyer at Economics21 says the new FDA regulations “will kill” as users deprived of vaping options turn back to tobacco or simply never make the switch.
Meanwhile, Trevor Burrus at Cato explains how big tobacco companies, which have found in vaping a nimble competitor they have up to now managed neither to beat nor dominate, now stand to profit as the new rules regulate it out of existence. The same applies to the state governments that are financially dependent on conventional cigarette sales under the cartel-like arrangements of the 1998 tobacco settlement.
So there you have it: government and Big Tobacco revenues get shored up, while millions of consumers lose access to products they want and in some cases credit with saving their lives. And thousands of small businesses, both in retail and manufacturing sectors, face ruin [some coverage of that: York, Pa. Daily Record, WKOW, USA Today]
If Congress chooses, it can do something about this. An amendment approved by the House Appropriations Committee last month would grandfather in products now available, applying the prohibitive rules only to products introduced in the future. Whether Washington acts on this sensible idea will depend in part on whether it is listening to the voices of ex-smokers and young consumers around the country who feel competent to run their own lives and make their own choices.
Published in Law
While it is not nearly as strong as cigarettes, there is a smell, and since vape oil comes in flavors, the smell is different one to the next.
What vape fumes are not is ‘secondhand smoke’. There is no health related reason for avoiding secondhand water vapor from e cigs.
You operate under the erroneous assumption that the Constitution matters. Or even written law itself. SCOTUS does Rule by Feelings, now. See: Anthony Kennedy’s screed on the gay marriage ruling.
There is nothing in the constitution that allows the feds to regulate tobacco, nor prohibit much of anything. We once believed that took a constitutional amendment! Now, it just takes any old agency that can claim jurisdiction.
Because it will be too expensive for the small companies to use the court system to defend themselves.
But what about this?
http://dailycaller.com/2016/02/22/vaping-is-not-smoking-anti-e-cig-activists-dealt-blow-after-judges-ruling/
I’m not arguing the Constitutional question. Even if the First Amendment said the FDA was empowered to do whatever the heck it wanted about tobacco products, it wouldn’t matter – e-cigarettes aren’t tobacco.
As a matter of statutory law, the FDA is empowered to regulate cigarettes. So what?
They see me blowin’
I’m vapin’
Nose-trollin’, they caught me vapin’ girly
(Smell me while I’m vapin girly)
(Smell me while I’m vapin girly)
(Smell me while I’m vapin girly)
(Smell me while I’m vapin girly)
Smell is so loud
Eye stangin’
Y’all be knowin’ that I’m vapin’ girly…
One reminder other than actual health issues a number of people have if others smoke or vamp, folks working in the restaurant industry have no free choice about exposure to these toxic chemicals unless they can afford to walk away from a job. I think they deserve some health considerations too. Many restaurants that have no smoking sections move their staff around and they do not provide a solid barrier between non-smokers and smokers. Something diners don’t realize until dinner is served.
It is not vamping, it is vaping. Secondly, what research are you talking about?
Could be an autocorrect issue.
But yes, public vamping is very entertaining to picture :-)
So, you are for laws that forbid smoke or vaping in any place of employment. And you are for this because people who cannot afford to walk away from a job should have this protection at work.
I, for one, do not think anyone has a right to a job, or a right to demand their employer create the environment at their job simply because they cannot afford to get another job.
If someone wants to cater to smokers who smoke at dinner, then don’t get a job there. You are free not to apply. You are free not to take that job.
By the same token, if you are allergic to chicken, don’t take a job plucking them.
With all due respect, the issue of smoking or vaping in public is not at issue in this discussion. The issue is that the FDA has, acting on no authority but its own, done the following:
This means that company X, who makes a vanilla flavor, and who sells it in 5 different nicotine concentrations, will have to spend over $5 million just on that flavor.
There is. We were in an outdoor restaurant in Santa Barbara recently and were overwhelmed with a terrible odor that took several minutes to track down. It was a new Ager vamping. But my biggest issue is my health, my lung disease, my difficulty breathing at times and the fact I have one lung. Guess no one cares about that.
And before you ask, there is medical research that proves e-cigarettes and vamping have adverse side effects to asthmatics and many lung diseases. So please folks, stay home and keep your doors and windows shut. Then only your kids will get sick and the rest of us will support them with disability and health insurance.
To present a parallel predicament:
Boutique auto makers in the US are few and far between because of the stringent crash and safety test laws on the books. One such area that costs millions just by itself is seatbelt design.
If a maker uses a seatbelt design, even one “off the shelf”, it still has to crash test its installation. That means building and destroying 1 car. If it then wants to use a different color belt (say, one that matches the interior), it has to crash test that too. Costs add up quickly, so boutique car designers either sell their cars as kits, or go abroad.
The FDA does not have the power given to it by Congress to do this but has taken it for itself.
Not that the GOP will raise a finger to fight it. I have been told that Congress has no power to do anything ,and only, only getting the Presidency will let us do anything. That is because Obama will veto anything.
Wish when we did control the Presidency we did something. When the Dems retake the Senate, mark my words, they will give Clinton the power to appoint every judge she wants by blowing away the minority rights in the Senate.
What’s keeping you from staying home with your doors and windows shut? You’re the one experiencing the problem.
It is not that nobody cares. It is the idea that you want everyone else to modify their behavior for you. So, because you have an issue, the State should pass laws to eliminate vaping outside everywhere, and vapers should only, *ever*, be allowed to vape in private with the windows shut.
That is what you are asking for.
Excessive perfume bothers me, and can, in moments give me a raging sinus headache that bothers me the rest of the day. I am not using that to call for limiting liberty.
Also, please post links to the studies that show vaping causes problems for most people.
I find vamping to be annoyingly repetitive.
People talking in public bothers me. We should pass laws that everyone has to shut the heck up when they’re not in their own homes with the windows closed.
Well, there’s vamping and then there’s vamping. Not that the two can’t be combined…
Again, not an FDA issue.
There is another aspect that should be brought up with regards to this retroactive illegal ban:
We are seeing the same effect as the strange alliance known as The Baptists and Bootleggers.
During prohibition, and in dry counties for generations following, you would often see both the Baptists and the bootleggers advocating for the continuance of prohibition. For the Baptists, it was a moral stance, for the bootleggers, it kept their prices high and competition scarce.
In this ban, we have the same sort of alliance. The aggressively anti-smoking crowd, who dislike and would ban even simulated smoking and candy cigarettes, allied with the tobacco producers (whose attempts to get into the e-gig market have been failures), allied with the state and federal governments who have come to relay on tobacco cartel taxes.
Put another way – the government does not really want people to quit smoking because it needs the money.
It’s all a big con game.
There is zero evidence that these are “toxic chemicals”.
It’s vaping. Unless they were in drag.
Where does the FDA derive authority over a product containing no food, drug, or tobacco? From a chicken-[expletive] Congress which refuses to assert its Constitutional role.
This is is why my party has been Trumped.
I live with someone uses one, and I have never noticed a smell.
I notice it in an enclosed vehicle. I can’t say I like it.
But what I hate is that the FDA is trying to kill my son, who used e-cigarettes to quit smoking. (I can be overly dramatic, too, if anyone wants to play that game.) He has been rather upset by this news.
Our friends across the pond make more sense: https://www.rcplondon.ac.uk/news/promote-e-cigarettes-widely-substitute-smoking-says-new-rcp-report
The Royal College of Physicians has not found vaping wanting, but as a positive development in promoting health. They typical “for the children” argument that it is a gateway, they also dispute.
I don’t smoke, or use vapor devices. The impact of the FDA regulations do not affect me. Still, the fact that the FDA is regulating them is an example of what is wrong with our government.
What gives the FDA the authority to regulate these devices? They say it is the Tobacco Control Act passed in 2009. Yet this law doesn’t mention these devices, and certainly few of the legislators that passed the bill had ever heard of them at that time. Clearly, this law was not intended to cover these devices. Yet, the FDA still decides it has authority, to write laws regarding them (Legislate), then determine who is guilty (Executive), and decide what the penalty is (Judicial).
All three branches rolled into an agency that is not accountable to the people. To me, this is an example of what stinks about our government.
It is ridiculous and infuriating to see how our government agencies simultaneously attack big businesses for greed and in the name of protecting consumers, while at the same time protect other big businesses against innovations that would serve the public with a safer product and give consumers what they want.