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The E-Cigarette Bans Put Public Health at Risk

An opinion piece in the National Review echoes the sentiments of the vaping community and medical professionals around the world as it calls on the Trump Administration to stop defending the current FDA vaping rules. Now that the amendment to the rules that could have saved many vaping products has failed to pass, the Justice Department could still change or even eliminate the current rules to save vaping and the lives of many smokers.

Authors Jeff Stier, head of the National Center for Public Policy Research’s Risk Analysis Division, and Henry I. Miller, founding director of the FDA’s Office of Biotechnology, blame partisanship for the failure of the Cole-Bishop Amendment to pass the Senate. The amendment would have changed the FDA vaping rules to allow all but the newest vaping products to remain on the market without the need for highly expensive testing. The amendment was set to pass through as a rider on the 2017 budget, but Senate democrats threatened a government shutdown unless it and other riders were removed.

The authors say that now, the best thing the Trump administration could do is to stop defending the deeming rule that was put through during the Obama administration. The deeming rule makes e-cigarettes – even the devices alone with no liquid – tobacco products. There are already legal challenges to the rule, and the authors suggest that if the Justice Department were to simply decline to defend it in court, it could solve a lot of problems. Under that circumstance, the deeming rule would either be nullified automatically, or scaled back to remove most of the provisions but leave some in place, like the ban on sales to minors which is not in dispute.

Alternatively, new FDA Commissioner Scott Gottlieb could simply not enforce the deeming rule. Gottlieb is believed to be opposed to the FDA’s heavy e-cigarette regulations, but if he were to leave the deeming rule as-is but ignore it, that could leave it open to future enforcement by another administration. Changing the rule is another possibility, but one that would involve complicated politics.

Declining to defend a law that’s already in place is the tactic the Obama administration used to set the wheels in motion for the legalization of same-sex marriage. The Defense Against Marriage Act that banned same-sex marriage was facing legal challenges when Obama took office. Rather than defending it, the administration deemed it “indefensible.”

The authors of the National Review article believe the FDA deeming rule to be indefensible due to the faulty process through which it was passed, as well as its actual content. They accuse the FDA of putting public health at risk by denying smokers the opportunity to improve their health and that of those around them by switching to vaping.
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Electronic Cigarettes • June 15, 2017

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