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Under the new rules, even products currently sold on the market will have to be withdrawn unless their makers, mostly small companies, care to venture on an FDA approval process that can cost $1 million and up per item.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

Members have made 61 comments.

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  1. Profile photo of James Gawron Thatcher

    Ahhhh..the corruption and politicization of the FDA brings us another lose lose propostition. I thought they had their hands full murdering teenage girls with the morning after pill.

    Great News.

    Regards,

    Jim

    • #1
    • May 9, 2016 at 10:40 am
  2. Profile photo of The Reticulator Member

    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.

    Or if it listens to the parents of young ex-smokers who are being put in a difficult position by this new campaign of hate and greed on the part of the FDA.

    • #2
    • May 9, 2016 at 10:41 am
  3. Profile photo of Jon Gabriel, Ed. Chief

    People trying to ban smoking often want to save lives. People trying to ban vaping just want to tell others what to do.

    • #3
    • May 9, 2016 at 10:46 am
  4. Profile photo of Bryan G. Stephens Reagan

    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.

    Banning smoking is a crusade, Jon. They don’t really care about saving lives. If they did, the same crowds would not be pro-Pot.

    It is all about telling people how to live. They are anti-Freedom, because any true way to define Freedom means that people have the right to be wrong.

    • #4
    • May 9, 2016 at 10:54 am
  5. Profile photo of The Reticulator Member

    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.

    That’s why I call it a campaign of hate. They hate people who make consequential decisions on their own.

    But it’s also greed, because they want more power and money for their regulatory establishment, and they are allied with greedy tobacco companies that want to drive out small-time competition.

    Republicans are so sluggish and stupid that I expect them to let Hillary get ahead of them on this issue rhetorically, even though she is just as much a part of the hate ‘n greed machine as the rest.

    • #5
    • May 9, 2016 at 10:54 am
  6. Profile photo of Douglas Member

    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.

    The first group set the tone for the second.

    • #6
    • May 9, 2016 at 10:57 am
  7. Profile photo of Bryan G. Stephens Reagan

    The Reticulator:

    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.

    That’s why I call it a campaign of hate. They hate people who make consequential decisions on their own.

    But it’s also greed, because they want more power and money for their regulatory establishment, and they are allied with greedy tobacco companies that want to drive out small-time competition.

    Republicans are so sluggish and stupid that I expect them to let Hillary get ahead of them on this issue rhetorically, even though she is just as much a part of the hate ‘n greed machine as the rest.

    Hate and Greed. The H&G Crowd. I like it.

    • #7
    • May 9, 2016 at 10:59 am
  8. Profile photo of Aaron Miller Member

    Republicans and Democrats alike have shielded themselves from direct responsibility for such actions by abandoning their Constitutional role to unelected bureaucrats. So they should be replaced with challengers every term until the unjust practice of determining winners and losers in the marketplace is at least enacted by people we can vote out of office.

    This is why hope of voter control over government is fading and why citizens are turning to ever wilder gambles.

    • #8
    • May 9, 2016 at 11:00 am
  9. Profile photo of I Walton Member

    It’s about revenue more than anything and of course contributions from big tobacco. I wrote my Congressman immediately. The rot is total and the bureaucrats who do this sort of stuff don’t even know that what they do is criminally stupid.

    • #9
    • May 9, 2016 at 11:10 am
  10. Profile photo of Sweezle Member

    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?

    • #10
    • May 9, 2016 at 11:18 am
  11. Profile photo of The Reticulator Member

    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?

    I don’t want to smell the stench of Republicans who made this regulatory overreach possible.

    There are lots of things I don’t like to smell. That doesn’t mean my dislikes should become law.

    • #11
    • May 9, 2016 at 11:21 am
  12. Profile photo of PHenry Member

    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.

    Both ‘want’ to save lives. Both want to tell people what to do.

    The problem here is letting the claim of supposed benefit justify the centralized prohibition of personal choices.

    What I’m trying to say here is that if you support any prohibition based on your judgement, or some grand scientific pronouncement, then you have little justification for complaint when it is your choices being prosecuted.

    If greenhouse gases are proclaimed ‘unsafe’ based on ‘consensus’ then they can be banned, right? If e-Cigs and vaping are proclaimed unsafe based on consensus, then they can be banned, right? If Cigars and cigarettes are proclaimed unsafe they can be banned…

    You see where this is going. Beware what powers you cede to central federal government, because by and by, it will come around to your ox getting gored.

    • #12
    • May 9, 2016 at 11:23 am
  13. Profile photo of PHenry Member

    Sweezle: 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?

    So your right to decide what you like and don’t like to smell constricts my rights? What if I like the smell? Don’t I count?

    • #13
    • May 9, 2016 at 11:27 am
  14. Profile photo of Midget Faded Rattlesnake Moderator

    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?

    Yes, nuisance is real, and emissions like smoke are the classical example of nuisance. That said, it seems plausible to me that vaping creates less harm to bystanders, too, than traditional cigarettes do, in which case, encouraging vaping rather than traditional cigs does reduce nuisance, though not completely.

    (Disclosure: I am one of those asthmatics deathly allergic to traditional cigarette smoke. Not all asthmatics are – some can even smoke cigs themselves without triggering an attack. And I find others vaping instead much less threatening to my personal health. I have heard many anecdotes from others with sensitive lungs reporting that they find secondhand vaping less noxious as well. I realize anecdotes aren’t data, though.)

    • #14
    • May 9, 2016 at 11:28 am
  15. Profile photo of skipsul Moderator

    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?

    This has nothing to do with whether smoking or vaping is practiced in public.

    Thanks to vaping, I know of 2 long-term smokers who were finally able to quit. That option will be denied henceforth.

    • #15
    • May 9, 2016 at 11:31 am
  16. Profile photo of Midget Faded Rattlesnake Moderator

    PHenry:

    Sweezle: 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?

    So your right to decide what you like and don’t like to smell constricts my rights?

    Yes, sometimes emitting a noxious fume is considered a violation of others’ rights, hence nuisance law, which is hardly a new invention (instead, it’s one of the oldest common-law actions). That by itself doesn’t mean cigarette smoke is a noxious-enough fume to justify legal action, though.

    Most people are not seriously harmed by incidental exposure to secondhand smoke, and those of us who are are so rare among the population that it’s incumbent upon us to adapt to everyone else as best we can.

    • #16
    • May 9, 2016 at 11:42 am
  17. Profile photo of The Reticulator Member

    Midget Faded Rattlesnake:

    PHenry:

    Sweezle: 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?

    So your right to decide what you like and don’t like to smell constricts my rights?

    Yes, sometimes emitting a noxious fume is considered a violation of others’ rights, hence nuisance law, which is hardly a new invention (instead, it’s one of the oldest common-law actions). That by itself doesn’t mean cigarette smoke is a noxious-enough fume to justify legal action, though.

    Most people are not seriously harmed by incidental exposure to secondhand smoke, and those of us who are are so rare among the population that it’s incumbent upon us to adapt to everyone else as best we can.

    Nuisance law can be handled by lower level jurisdictions. I would even favor regulation at that level. But we’re talking here about FDA regulatory overreach.

    • #17
    • May 9, 2016 at 11:50 am
  18. Profile photo of Midget Faded Rattlesnake Moderator

    The Reticulator:

    Midget Faded Rattlesnake:

    PHenry:

    Sweezle: 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?

    So your right to decide what you like and don’t like to smell constricts my rights?

    Yes, sometimes emitting a noxious fume is considered a violation of others’ rights, hence nuisance law, which is hardly a new invention (instead, it’s one of the oldest common-law actions). That by itself doesn’t mean cigarette smoke is a noxious-enough fume to justify legal action, though.

    Most people are not seriously harmed by incidental exposure to secondhand smoke, and those of us who are are so rare among the population that it’s incumbent upon us to adapt to everyone else as best we can.

    Nuisance law can be handled by lower level jurisdictions. I would even favor regulation at that level. But we’re talking here about FDA regulatory overreach.

    I agree completely! I do not even consider the FDA a valid agency, to tell the truth. My pointing out nuisance law is intended to show that it’s not necessary to dismiss valid concerns in order to decry regulatory overreach.

    • #18
    • May 9, 2016 at 11:59 am
  19. Profile photo of PHenry Member

    The Reticulator: Nuisance law can be handled by lower level jurisdictions. I would even favor regulation at that level. But we’re talking here about FDA regulatory overreach.

    Agree, I have no problem with local regulations ( although I would oppose them in my jurisdiction as it relates to ‘smells’) or with private businesses creating smoking areas, or even banning smoking.

    My main point is that even if you can justify nuisance laws because they help you avoid that nuisance, you have opened the door for the next busybody who considers your personal choices to be nuisances to ban them.

    Freedom demands of us some level of tolerance of other peoples freedoms. Freedom goes both ways.

    That means finding some other way to avoid something you find a nuisance besides using the power of government to persecute and prosecute them.

    • #19
    • May 9, 2016 at 12:01 pm
  20. Profile photo of Sweezle Member

    The Reticulator:

    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?

    I don’t want to smell the stench of Republicans who made this regulatory overreach possible.

    There are lots of things I don’t like to smell. That doesn’t mean my dislikes should become law.

    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.

    • #20
    • May 9, 2016 at 12:02 pm
  21. Profile photo of Bryan G. Stephens Reagan

    skipsul:

    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?

    This has nothing to do with whether smoking or vaping is practiced in public.

    Thanks to vaping, I know of 2 long-term smokers who were finally able to quit. That option will be denied henceforth.

    Right. Smoking in public is not on the agenda here.

    But hey, if you don’t like smoking in public or vaping in public, make that argument.

    Personally, I like the result of no smoking where I eat. The No-smoking section was a joke. Ditto for planes.

    Still, should patrons and owners not be able to come to an agreement? Midge and anyone else bothered by it (me included) is free to avoid the smoking establishment, right?

    • #21
    • May 9, 2016 at 12:02 pm
  22. Profile photo of Midget Faded Rattlesnake Moderator

    Bryan G. Stephens: Still, should patrons and owners not be able to come to an agreement? Midge and anyone else bothered by it (me included) is free to avoid the smoking establishment, right?

    That’s pretty much what I try to do, and it usually works.

    I am a freak and therefore so bizarrely sensitive that even when restaurants decide (or are coerced) to switch to being nonsmoking establishments, I can have attacks due to residual smoke on the walls (even when the walls have been treated and painted to seal the smoke in – yes, once that really happened!). But no system can be perfect, and I can avoid that restaurant in the future if that is the case. And no system can be perfect.

    Simply allowing people to be honest about whether their establishment allows smoking or not strikes me as the best policy. (When everything is forced to be labeled nonsmoking, what happens, in my experience, is that some establishments still secretly allow smoking, then have to lie about it.)

    • #22
    • May 9, 2016 at 12:07 pm
  23. Profile photo of PHenry Member

    Sweezle: I keep up with this a little more because I have a lung disease and only one lung left.

    I’m sorry to hear about your illness, and that puts another face on your comments about ‘avoiding stench’. Its not the smell you are objecting to, it is that you consider it dangerous for your health.

    That makes it, to me, akin to peanut bans based upon possibility of peanut allergies. It is understandable that someone deathly allergic to exposure to peanuts would support a total ban on peanuts.

    It also would not be sensible. Not everyone is allergic to peanuts, and many enjoy them very much…

    • #23
    • May 9, 2016 at 12:12 pm
  24. Profile photo of Kozak Coolidge

    They should just switch to e Joints and all will be well.

    • #24
    • May 9, 2016 at 12:30 pm
  25. Profile photo of Autistic License Member

    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.

    • #25
    • May 9, 2016 at 12:35 pm
  26. Profile photo of Douglas Member

    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’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.

    • #26
    • May 9, 2016 at 12:42 pm
  27. Profile photo of Miffed White Male Member

    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?

    • #27
    • May 9, 2016 at 12:42 pm
  28. Profile photo of Miffed White Male Member

    Douglas:

    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’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.

    And teenage boys overuse axe body spray. Doesn’t mean it gets banned.

    • #28
    • May 9, 2016 at 12:43 pm
  29. Profile photo of Douglas Member

    Miffed White Male:

    Douglas:

    And teenage boys overuse axe body spray. Doesn’t mean it gets banned.

    And I don’t want it to be. At all. I’m just asking “Lord, why?”.

    • #29
    • May 9, 2016 at 12:45 pm
  30. Profile photo of Phil Turmel Thatcher

    Autistic License:

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

    Only what’s deliberately added. I have one customer who began vaping some time ago to quit smoking. It worked for him, and he has continued because he likes it. He makes his own “juice” with various citrus flavors, and that’s the only thing a bystander can detect.

    FDA regulation of vaping is pure cronyism.

    • #30
    • May 9, 2016 at 12:45 pm
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