Congress Reproaching FDA E-Cigarette Tactics

In this undated image from video provided by Resound Marketing in August 2013, Jenny McCarthy uses a blu eCig in a television advertisement. Electronic cigarettes have often been described as a less dangerous alternative to regular cigarettes. But there are few studies exploring exactly what chemicals are in them, and whether they are harmful. Some experts believe that at a time when cigarette smoking has finally become passe in popular culture, e-cigarettes may re-glamorize puffing away in public places. (AP Photo/Resound Marketing)

When the former Food and Drug Administration (FDA) Commissioner Scott Gottlieb announced the FDA’s new e-cigarette policy, it caused an uproar among many conservatives and business owners– for good reason. The new policy basically states that only certain stores can sell particular flavored e-cigarettes, despite no evidence supporting their conclusion.


There are multiple problems with the announced policy. First and foremost, it would not be effective at preventing teens from accessing e-cigarettes. Second, the policy distorts the free markets, giving the government power to pick winners and losers. And finally, the FDA did not use the proper rulemaking procedures to create this policy, highlighting how important it is for conservatives to fight against unnecessary government overreach.


The most recent data shows teens mainly get e-cigarette products from adults who are old enough to buy them. Oddly, it is not currently illegal to give minors tobacco products.


So, given that the FDA has unwisely decided to focus their attention on retailers, you would think that they would use the best data available to crack down on businesses that are more likely to sell e-cigarettes to minors. Unfortunately, that’s not the case.


Tobacco and vape shops and online retailers have a worse record on age enforcement than grocery and convenience stores. But the FDA’s rule would allow those retailers to continue to sell the restricted flavored e-cigarettes, while grocery and convenience stores would be banned. Essentially, the FDA is pushing teens to retailers who are more likely to sell these products to them, which will likely result in more teens smoking.


Thankfully, the Senate is taking action that would actually be effective at addressing the problem. In April, Senators Dianne Feinstein (D-CA), John Cornyn (R-TX) and Chris Van Hollen (D-MD) introduced the bipartisan Preventing Online Sales of E-Cigarettes to Children Act. This bill will require anyone who delivers e-cigarettes to confirm the recipient is of legal age by checking their ID, something that is not currently mandatory.


Last month, over 40 Republican Members of Congress signed a letter to Acting FDA Commissioner Ned Sharpless, explaining their many concerns with this new policy.


The letter reads that “Ultimately, we should want a marketplace wherein all players are competing under equal rules and that advances the state, pressing public policy need of keeping e-cigarettes out of the hands of minors.” Exactly. The FDA should not pick winners and losers in a free market economy, especially when their policy won’t even fix the problem.


The letter also highlights the concerns surrounding how this policy came to be in the first place. “The Tobacco Control Act requires the FDA to go through notice and comment rulemaking to regulate the sale and distribution of tobacco products. While the FDA is accepting comments on the draft guidance, no formal comment and rulemaking process has been undertaken.”


President Trump’s administration and Republicans in Congress have successfully removed unnecessary government regulations that hinder economic growth. It is unfortunate that the FDA is trying to do the opposite, and fast-track regulations that won’t do anything except hurt small businesses.


Senators must keep these important issues in mind when it comes time to confirm Acting FDA Commissioner Ned Sharpless. Senate Majority Leader Mitch McConnell, as well as other powerhouse Senators like Lindsey Graham and Rand Paul, should make sure that whomever becomes the next FDA Commissioner does not expand burdensome, ineffective regulations on small businesses.


Katlyn Batts is the Chairwoman of the Wingate University College Republicans and an employee of the Jesse Helms Center.