Senate Hearing: Abboud Blasts Schumer's War on Vape After FDA Lifts JUUL Ban

AP Photo/Frank Augstein

The executive director of the Vapor Technology Association told members of the Senate Judiciary Committee that the crusade against youth vaping is a government overreach attacking an epidemic that does not exist.

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“Let's get into the facts. I want to be very clear: youth vaping in the United States is dramatically resolved,” said Tony Abboud, a litigator and government relations professional, who has worked on tobacco and smoking issues for more than 25 years.

“In total, the youth vaping rate has plummeted 61 percent since 2019, partly thanks to a federal law raising the age to buy all tobacco products to 21 – a law the Vapor Technology Association championed with the White House and Congress,” he said.

The hearing was set up as a showcase by Sen. Richard Durbin (D.-IL), who has made crushing vaping a personal mission.

Durbin wrote a Jan. 16, 2024, letter to Dr. Robert M. Califf, the Food and Drug Administration commissioner, blasting the FDA’s reluctance to issue a marketing ban on non-tobacco nicotine:

This repeated failure to meet FDA’s own stated projections tells us FDA is not meeting its obligations under the court order. Given these delays, and with no end in sight, there is absolutely no reason why FDA continues to permit unauthorized e-cigarettes to remain on store shelves. FDA has the tools and the authority to clear the market of unauthorized products today, yet the agency instead is granting a free pass to scores of vaping products that are harming the health of children in our country.

Vaping has been a conservative pet project for a decade, a movement led by Grover Norquist, the founder and president of Americans for Tax Reform. Norquist argues that the Republican Party could convert vapers into voters because they are otherwise apolitical, and part of a lifestyle and subculture more associated with the Democrats.

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Another early adopter of the conservative case for vaping was California Republican Rep. Duncan Hunter Jr., a Marine combat veteran, who broke out his vape during a Capitol Hill committee hearing. 

Speaking exclusively with RedState, Abboud said he was trying to reveal to the senators the FDA's illogical approach to vape regulation.

"I was proud to testify today on behalf of the U.S. e-cigarette industry to bring light to the deepening FDA hypocrisy and double standards American businesses are facing," said the graduate of the University of Iowa College of Law.

"While the Biden Administration has demonstrated a willingness to recognize and accept real-world, scientific evidence through its decisions to delay a proposed ban on menthol cigarettes and reclassify marijuana," he said. "They continue to demonize e-cigarettes, a proven harm reduction and smoking cessation tool for adults. Science cannot only be followed when politically convenient."

In his testimony, Abboud also challenged the very legality of the FDA’s work to shut down flavored vape, which was an effective path for people looking to quit tobacco.

“Despite both public and scientific support for the availability of e-cigarettes to adults, The Food and Drug Administration has implemented a de-facto ban on flavored vaping products, a ban that it is not legally authorized to implement,” he said.

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The FDA’s own actions are hurting Americans, he said.

“Instead of pursuing enforcement action based on failed regulatory policy, the FDA must make harm reduction its North Star,” he said.

“To continue preventing youth vaping, regulators must adopt a series of marketing reforms and youth access restrictions that will further drive down youth vaping while ensuring that a wide variety of flavored vaping products remain available to adult smokers,” Abboud said.

“Only then will the FDA be doing the job required of it under the Tobacco Control Act – a law which many of you here in this room signed into law and supported, leading the way for real and meaningful reforms for our industry,” he said.

“Only then will tens of millions of adult American smokers have a fighting chance,” he said.

FDA rescinds 2022 JUUL ban

Durbin demanded that the FDA issue one of its Marketing Denial Orders for synthetic tobacco products, but the hearing comes a week after the FDA reversed its June 23, 2022, MDO against JUUL products.

The Illinois Democrat was thrilled with the JUUL MOD.

The MOD did not affect JUUL’s sales overseas.

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JUUL Labs was founded in 2007 by Adam Bowen and James Monsees as Ploom, named after their first e-cigarette. The company grew and underwent various machinations, culminating in its 2018 partnership with Altria.

Altria, the new name for tobacco giant Phillip Morris, paid almost $13 billion for 35 percent of JUUL Labs. For Altria, it was the ultimate diversification, given JUUL’s mission statement: “The mission of Juul Labs is to transition the world’s billion adult smokers away from combustible cigarettes, eliminate their use, and combat underage usage of our products.”

The FDA’s June 6 reversal of the JUUL MOD puts everything back in flux but also reveals the political realities, too: 

In parallel, in the time since the MDOs were administratively stayed in 2022, the FDA has gained more experience with various scientific issues regarding e-cigarette products, and there have been new litigation outcomes in cases about MDOs for e-cigarette products from other manufacturers. Some of these court decisions establish new case law and inform the FDA’s approach to product review to maintain the agency’s commitment to issuing final decisions that are appropriate on both the scientific merits and the law.

Durbin is not happy:

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Abboud said he is not sure if he got through to the senators, but he is not giving up.

"My testimony amplified not only the abject failures the Senate Judiciary Committee gathered to discuss today, but an even deeper regulatory mess at the FDA, demonstrating the need for FDA to immediately reverse course and authorize a diverse marketplace of flavored e-cigarettes for American adults," he said.

"I am ready to continue being a resource for our legislators as they confront the overwhelming body of science proving the benefits of flavored nicotine options for Americans looking to quit smoking."

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