“Envisioning a world where cigarettes would no longer create or sustain addiction, and where adults … get nicotine from alternative and less harmful sources, needs to be the cornerstone of our efforts.”
—Dr. Scott Gottlieb, FDA
When the federal government wants the almighty dollar from an industry that thusfar has refused to write a check, no amount of 1,000-page pseudoscience-based regulation – as we’ve seen in the deeming regulations – is ever enough. As long as the filing fees are unsettlingly high, the regulatory burden made unbearable, and the penalties for noncompliance swift and severe, that’s all that really matters. It wouldn’t matter if those whose lives were saved by the advent of E-Cigarettes switched back to Marlboro and found themselves in a hospital bed, or if cities and towns experiencing unforeseen growth due to the side-effects of the billion-dollar vaping industry taking residence downtown suddenly became wastelands free of jobs or enterprise. Harm Reduction (or, should I say, harm elimination), the promotion of safe and sterile business practices, and the removal of an industry’s bad actors have never been the goal of regulation. The FDA’s nearly 15,000 employees have to get paid somehow, and a million-dollar-per-SKU filing fee does just that, while putting E-Cigarettes back in the hands of Big Tobacco R&D, where the FDA thinks they belong.
At least until now.
Donald Trump was a wildcard, but ultimately, the choice most of the vapor industry made in the 2016 election. A man that has never lit a cigarette, had a drink, or engaged in any sort of vice throughout his entire life, it was mostly unknown if he’d sympathize with the vaping community and the larger vaping industry, which produces products assumed by some to always contain nicotine, lure in teenage users, and engage in unethical industry practices. In reality, these claims are mostly false, a case study of sorts affirming that old saying – “a bad apple spoils the bunch”. Regardless, he offered not a single clear public statement on an issue that effects up to 20% of the population – combining the number of current smokers and E-Cigarette users.
However mum Donald remained on the campaign trail, he stormed into the oval with a blanket hatred for government regulation, enacting an order directing all federal agencies to eliminate two regulations for every new regulation enacted. The confidence was near zero that the feds would ever view the deeming regulations as a good choice to eliminate – it would be similar to the FDA planning to dismantle the Family Smoking and Tobacco Control Act in exchange for some new opiate regulations, but it was a beacon of hope as many brick-and-mortars in towns across the nation planned an exit strategy.
However, for a man that has – since the very beginning – aligned himself with the coal industry, a slice of our economy decimated by nothing else but government regulation, the vaping industry was almost too natural a step. In late April, the vaping industry began crafting yet another contingency plan – one that involved keeping the doors open – as Trump let go Obama-era anti-vaping surgeon general Gregory Conley. Soon after, Dr. Scott Gottlieb took up office as head of the FDA, and offered the quote that heads this article. The walls stopped closing in, and the deeming regulations were most certainly on life support.
Dr. Gottlieb wasted little time, beginning his tenure with an ambitious plan to cut nicotine levels in combustible cigarettes, claiming that “lowering nicotine levels could decrease the likelihood that future generations become addicted to cigarettes and allow more currently addicted smokers to quit”. Soon after, the FDA once again opened the Deeming Regulations for public comment, a decision that advised the industry that change was in order. With mere months until the planned implementation, the compliance window was moved back – from early 2018 to Aug. 8, 2021 for cigars, pipe, and hookah tobacco and to Aug. 8, 2022 for E-Cigarettes. The regulations were no longer an impending meteor that would burn the industry to the ground, but a distant nightmare that would come back to haunt us in a few years’ time. More importantly, however, it was a signal that the federal government had lost confidence in the scientific validity of it’s own regulations.
Much like a product viewed as useless and redundant by it’s own inventor, a law shunned by it’s very own creators begins the journey to a slow, painful death. This case is no different, and with 2022 a long way’s away, there’s ample time to build a case that puts this law in the grave for good. However, there’s just as much time to craft even more onerous regulations, perhaps reminiscent of this law offering full prohibition and criminalization of DIY E-Liquid, which has been introduced in the Oregon senate on the basis of yet another pseudoscience study crafted in an Altria boardroom.
While this story may forever be developing, in a country with a government elected by and for the people, we have the power to write this story, and it’s high time we begin.