The FDA’s Slow Motion Ban of E-Cigarettes

 

shutterstock_237371161Last 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Under the new rules, even products currently sold on the market will have to be withdrawn unless their makers, mostly small companies, care to venture on an FDA approval process that can cost $1 million and up per item.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 RecordWKOWUSA 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.

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  1. PHenry Member
    PHenry
    @PHenry

    Autistic License: There isn’t any smell to vaping that I know of.

    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.

    • #31
  2. Douglas Inactive
    Douglas
    @Douglas

    Miffed White Male:E-cigarettes are not a tobacco product.

    Yet somehow they are being regulated under rules for tobacco. How will this withstand the most basic legal challenge?

    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.

    • #32
  3. PHenry Member
    PHenry
    @PHenry

    Douglas:

    Miffed White Male:E-cigarettes are not a tobacco product.

    Yet somehow they are being regulated under rules for tobacco. How will this withstand the most basic legal challenge?

    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.

    • #33
  4. The Reticulator Member
    The Reticulator
    @TheReticulator

    Miffed White Male:E-cigarettes are not a tobacco product.

    Yet somehow they are being regulated under rules for tobacco. How will this withstand the most basic legal challenge?

    Because it will be too expensive for the small companies to use the court system to defend themselves.

    • #34
  5. Addiction Is A Choice Member
    Addiction Is A Choice
    @AddictionIsAChoice

    But what about this?

    http://dailycaller.com/2016/02/22/vaping-is-not-smoking-anti-e-cig-activists-dealt-blow-after-judges-ruling/

    • #35
  6. Miffed White Male Member
    Miffed White Male
    @MiffedWhiteMale

    PHenry:

    Douglas:

    Miffed White Male:E-cigarettes are not a tobacco product.

    Yet somehow they are being regulated under rules for tobacco. How will this withstand the most basic legal challenge?

    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.

    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?

    • #36
  7. Midget Faded Rattlesnake Contributor
    Midget Faded Rattlesnake
    @Midge

    Douglas:

    There’s lots of scented/flavored vaping formulas. I was getting my hair cut at my old fashioned Suthen Boys’s barbershop (deer antlers AND a Confederate Flag on the wall! Yee Haw, Yankees!), and a couple of boys walk in and start using their vape stuff, and suddenly the barbershop starts smellin’ girly. Turns out they’ve got things like apple caramel and fruity vape formulas .I swear, if someone does a Pumpkin Spice vape, I’LL fire on Ft Sumter, just to make war on a country that would produce such a thing.

    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…

    • #37
  8. Sweezle Member
    Sweezle
    @Sweezle

    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.

    • #38
  9. goldwaterwoman Thatcher
    goldwaterwoman
    @goldwaterwoman

    Sweezle:

    The Reticulator:

    In the case of smoking, second hand smoke has a negative impact on the health of others. People suffering from asthma, other Lung diseases are adversely effected. So health has to be considered. Vamping is newer but there is a lot of research on second hand vamping and negative impact on lung diseases. I keep up with this a little more because I have a lung disease and only one lung left. I care about breathing a little more than some.

    It is not vamping, it is vaping. Secondly, what research are you talking about?

    • #39
  10. Midget Faded Rattlesnake Contributor
    Midget Faded Rattlesnake
    @Midge

    goldwaterwoman: It is not vamping, it is vaping.

    Could be an autocorrect issue.

    But yes, public vamping is very entertaining to picture :-)

    • #40
  11. Bryan G. Stephens Thatcher
    Bryan G. Stephens
    @BryanGStephens

    Sweezle: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.

    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.

    • #41
  12. skipsul Inactive
    skipsul
    @skipsul

    Sweezle: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.

    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:

    • Declared all e-cigarrette products to be “Tobacco Products”, despite their complete lack of tobacco.
    • Declared that all e-cigarrette products manufactured since 2007 (i.e., since they were invented) must prove themselves “safe”.  By “ALL” they mean each and every single component in each and every flavor, and at each and every nicotine level produced.  These tests cost millions of dollars per test.
    • This has the effect of banning the entire industry, save those products manufactured by very wealthy existing tobacco companies, whose own products both ridiculously expensive and of inferior quality to the rest of the market.

    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.

    • #42
  13. Sweezle Member
    Sweezle
    @Sweezle

    Autistic License:

    Sweezle:

    Jon Gabriel, Ed.:People trying to ban smoking often want to save lives. People trying to ban vaping just want to tell others what to do.

    And people who want to ban public smoking and vamping don’t want to smell the stench. Or don’t the rest of us count?

    There isn’t any smell to vaping that I know of.

    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.

    • #43
  14. skipsul Inactive
    skipsul
    @skipsul

    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.

    • #44
  15. Bryan G. Stephens Thatcher
    Bryan G. Stephens
    @BryanGStephens

    skipsul:

    Sweezle: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.

    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:

    • Declared all e-cigarrette products to be “Tobacco Products”, despite their complete lack of tobacco.
    • Declared that all e-cigarrette products manufactured since 2007 (i.e., since they were invented) must prove themselves “safe”. By “ALL” they mean each and every single component in each and every flavor, and at each and every nicotine level produced. These tests cost millions of dollars per test.
    • This has the effect of banning the entire industry, save those products manufactured by very wealthy existing tobacco companies, whose own products both ridiculously expensive and of inferior quality to the rest of the market.

    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.

    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.

    • #45
  16. Miffed White Male Member
    Miffed White Male
    @MiffedWhiteMale

    Sweezle:

    Autistic License:

    Sweezle:

    Jon Gabriel, Ed.:People trying to ban smoking often want to save lives. People trying to ban vaping just want to tell others what to do.

    And people who want to ban public smoking and vamping don’t want to smell the stench. Or don’t the rest of us count?

    There isn’t any smell to vaping that I know of.

    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.

    What’s keeping you from staying home with your doors and windows shut?  You’re the one experiencing the problem.

    • #46
  17. Bryan G. Stephens Thatcher
    Bryan G. Stephens
    @BryanGStephens

    Sweezle:

    Autistic License:

    Sweezle:

    Jon Gabriel, Ed.:People trying to ban smoking often want to save lives. People trying to ban vaping just want to tell others what to do.

    And people who want to ban public smoking and vamping don’t want to smell the stench. Or don’t the rest of us count?

    There isn’t any smell to vaping that I know of.

    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.

    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.

    • #47
  18. thelonious Member
    thelonious
    @thelonious

    Midget Faded Rattlesnake:

    goldwaterwoman: It is not vamping, it is vaping.

    Could be an autocorrect issue.

    But yes, public vamping is very entertaining to picture :-)

    I find vamping to be annoyingly repetitive.

    • #48
  19. Miffed White Male Member
    Miffed White Male
    @MiffedWhiteMale

    Bryan G. Stephens:

    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.

    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.

    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.

    • #49
  20. Midget Faded Rattlesnake Contributor
    Midget Faded Rattlesnake
    @Midge

    thelonious:

    Midget Faded Rattlesnake:

    goldwaterwoman: It is not vamping, it is vaping.

    Could be an autocorrect issue.

    But yes, public vamping is very entertaining to picture :-)

    I find vamping to be annoyingly repetitive.

    Well, there’s vamping and then there’s vamping. Not that the two can’t be combined…

    • #50
  21. The Reticulator Member
    The Reticulator
    @TheReticulator

    Sweezle: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.

    Again, not an FDA issue.

    • #51
  22. skipsul Inactive
    skipsul
    @skipsul

    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.

    • #52
  23. Kozak Member
    Kozak
    @Kozak

    Sweezle: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.

    There is zero evidence that these are “toxic chemicals”.

    • #53
  24. Kozak Member
    Kozak
    @Kozak

    Sweezle: It was a new Ager vamping.

    It’s vaping. Unless they were in drag.

    • #54
  25. Doctor Robert Member
    Doctor Robert
    @DoctorRobert

    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.

    • #55
  26. Ralphie Inactive
    Ralphie
    @Ralphie

    Autistic License: There isn’t any smell to vaping that I know of.

    I live with someone uses one, and I have never noticed a smell.

    • #56
  27. The Reticulator Member
    The Reticulator
    @TheReticulator

    Ralphie:

    Autistic License: There isn’t any smell to vaping that I know of.

    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.

    • #57
  28. Ralphie Inactive
    Ralphie
    @Ralphie

    Kozak: There is zero evidence that these are “toxic chemicals”.

    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.

    • #58
  29. Pony Convertible Inactive
    Pony Convertible
    @PonyConvertible

    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.

    • #59
  30. Ray Kujawa Coolidge
    Ray Kujawa
    @RayKujawa

    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.

    • #60
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