The bureaucrats in the Food and Drug Administration this month have revealed that they have a real problem with e-cigarettes – an antipathy so strong that if the makers of “vape” products and their customers don’t spend a lot of time and money bowing to the agency, the FDA will shut them down in 2018.
Because, of course, consumers and sellers have to be “saved” from exercising their own free wills.
The first blow in this one-two punch came on May 11, when, as Jacob Sollum notes for Reason, the FDA issued a final report categorizing vape liquids as “tobacco products” and some, but not all, vape accessories as “tobacco accessories,” thus wrapping their Leviathan tentacles around yet another budding, consumer-satisfying industry.
This was done despite the fact that the vape delivery and storage products are not “tobacco”, and the vast majority of the fluids used by “vapers” are not derived from tobacco. In fact, as offered in the report, the FDA definition of a covered tobacco “accessory” could apply to the human hand, which fans of the English language might find curious.
The FDA plans on prohibiting sellers of e-cigarettes from offering the vape fluids or e-cigs to anyone under the age of eighteen. Anyone under twenty-six will have to show a photo ID, and no vape products may be sold in vending machines.
In addition, the makers of e-cigarettes will have until August of 2018 to show the FDA that their products are, get this, “appropriate for the protection of public health”, or they will be shut down. To add insult to injury, the FDA claims the prerogative to change its rules at any time.
Which is the exact opposite of how a consensual market transaction works.
But it gets worse. Or better, depending on how much you like fascism.
As Sullum notes, USA TODAY, reported on May 5, 2016, that getting approval from the FDA to sell an existing or new product will likely cost upwards of $1 million per every flavor and nicotine percentage.
Health and Human Services Secretary Sylvia Burwell claims that by controlling products with nicotine in them, she and her cohorts are helping to “protect our children and teenagers” from the dangers of tobacco.
But nicotine and tobacco are different things. Tobacco contains nicotine, but the latter can be derived from a number of nightshade plants, and it is not nicotine that the FDA, history, and the science of smoking tell us is harmful. The harm comes from the carcinogens in the tobacco. That is one of the reasons people vape, because they can get the nicotine they once got in cigarettes without having to inhale all the cancer-associated particulate matter found in tobacco.
How is it possible that the HHS Secretary could announce these mandates on nicotine delivery systems, blurring the lines between tobacco and a stimulant chemical slightly more intense than caffeine, and not be called out for it by any reporters in the room?
She and FDA Commissioner Robert Califf were allowed to get away with verbal legerdemain, and now Mr. Sullum has uncovered another chilling and confounding aspect of the FDA strong-arm tactics: the agency will stifle what the e-cigarette makers can say about their products.
According to Sullum, Nicopure Labs, a company that sells vape liquids and hardware, has brought suit over one facet of the FDA regulations. This would force anyone advertising non-combustible, non-tobacco e-cigs and claiming they are safer than tobacco – which a recent study confirms – to not only show that the e-cig would reduce tobacco-related disease for the user, but also to demonstrate it will “benefit the health of the population as a whole…”
It seems spectacularly odd for bureaucrats to demand that a product benefit the population of people who don’t use it. But, of course, socialism never allows for individual choice and subjective evaluation of results. Why not allow people to choose their own level of risk in their lives? In fact, why not allow smokers to have the option to switch from smoking to vaping? After all, evidence abounds that vaping is correlated to a marked decrease in smoking. The CDC itself recently released a national report that noted a nearly 5% drop in “adult” cigarette use since 2010, a period that has seen a marked increase in e-cigarette use. In a recent study conducted by the Mayo Clinic in Rochester, Minnesotta, 51% of smokers who were asked to vape prior to elective surgery opted to quit smoking and continue vaping after the study was over. In fact, in the entire state of Minnesota a study found that 23% of vapers were former smokers.
Even politicians such as Congressman Duncan D. Hunter (R, CA) have noted on the House floor that vaping helped him quit smoking.
Nicopure is arguing that the FDA is violating the right to free speech, and, as Jacob Sullum says, despite the fact that the Supreme Court has already taken big, beastly bites out the First Amendment when it comes to commercial speech, the company might have a strong case.
But regardless of whether Nicopure wins, the existence of the FDA and Department of Health and Human Services reminds Americans that their rights are never safe. Bureaucrats and politicians can strike again, anywhere, any time. Business owners are in particular danger, and, as has been shown in the case of e-cigarettes and nicotine, the FDA is not above blurring reality to aggrandize power.
The Bill of Rights has a checkered past when it comes to stopping that kind of abuse, so the public has many incentives to keep an eye on this issue.