It’s no secret that the U.S. Food and Drug Administration (FDA) wants to ban vapor-producing electronic cigarettes. Federal judges struck down the agency’s attempt to classify vaping products as “medical devices” and block their importation into the U.S. Instead, the agency deemed vapes “tobacco products,” making them subject to the same rules and regulations as traditional cigarettes, despite all evidence pointing toward their being much less harmful for consumers. If allowed to stand, the FDA’s new deeming rules would functionally eliminate 99 percent of vaping products from the market. Products that were available before 2007 would be exempt, but since no vapes were on the U.S. market before this date, all products will now be forced to go through the FDA’s expensive and onerous pre-approval process, with no guarantee of every returning to the market.
Last week, however, two lawmakers introduced a bill that might save the vaping industry and potentially the lives of millions of Americans.
The Deeming Authority Clarification Act of 2017, introduced last week by Reps. Tom Cole (R-OK) and Sanford Bishop (D-GA), would amend the Federal Food, Drug, and Cosmetics Act, giving FDA the authority to regulate vaping products as separate tobacco products while modifying the predicate date (the date at which products are grandfathered-in and need not go through the pre-approval process) to the date when they were deemed tobacco products. That is, instead of setting the grandfather date at 2007—when Congress gave the FDA power to regulate tobacco—it would allow the grandfather date for vapes to be 2017.
This is not a perfect solution. The Cole-Bishop bill is merely a stopgap measure that, while saving the current market, functionally freezes innovation where it is now.
Unlike the cigarette industry, vaping has evolved at lightning speed, with options from nicotine level, flavor, shape, and size to suit almost any preference. Companies often compete over who offers the safest e-liquids. This is a great thing because giving smokers more options allows them to find the right device to help them switch from traditional cigarettes—which kill half or more of those who form the habit—to the far less harmful vaping. Keeping such products widely available, cheap, and appealing is a good thing for public health. But those trying to restrict the vape market claim they only want to help the children.
Vapes do contain nicotine, a highly addictive substance. However, there was little need for the FDA to step in to protect children. Prior to the agency’s deeming rule, 48 states had already banned vape sales to minors. Furthermore, although nobody really wants to admit it, it is better for teens to vape than it is for them to smoke, and when vape sales to minors are prohibited, smoking traditional cigarettes increases among minors. In a study published last March, researchers at Cornell University found that teen smoking of traditional tobacco products—which on average contain much more nicotine than vape juice and many more carcinogenic chemicals—increased by nearly 12 percent in states that instituted age limits on purchases of e-cigarettes.
So, love them or hate them, there’s no disputing that vapes are less harmful than cigarettes and their availability decreases the chances that consumers will smoke traditional cigarettes. Despite the continuing efforts of public health advocates to stamp out cigarette use, the massive decline that began in the 1950s and 1960s has stalled in recent decades. It was innovative entrepreneurs who finally hit on a solution that seems to be working. Even if they never fully quit the deadly habit, every potential cigarette that is replaced by vaping reduces the chances that users will die from smoking-related illnesses. That should be more important than the FDA’s irrational need to control ever product Americans chose to put into their bodies.
If we can’t fully overturn FDA’s authority to regulate vapes, the next best option would be to alter the grandfather date as the Deeming Authority Clarification Act of 2017 seeks to do. Not only will it save the vaping market, but has the potential to save lives.