I’m at a lost for words. If you are reading this, you have likely heard the news that President Donald Trump is planning to ban flavored e-cigarettes in the coming weeks.
This is not The Onion. It is a reality.
On the anniversary of 9/11, Trump held a press gaggle at the White House announcing that his administration is preparing to propose new rules and finalize existing ones that will result in a massive removal of products from the market.
Secretary of Health and Human Services Alex Azar told reporters that he is taking the necessary measures, with consultation from the Food and Drug Administration (FDA).
“The Trump Administration is making it clear that we intend to clear the market of flavored e-cigarettes to reverse the deeply concerning epidemic of youth e-cigarette use that is impacting children, families, schools, and communities,” Azar said. “We will not stand idly by as these products become an on-ramp to combustible cigarettes or nicotine addiction for a generation of youth.”
Acting FDA commissioner offered similar sentiments.
“Nobody wants to see children becoming addicted to nicotine, and we will continue to use the full scope of our regulatory authority thoughtfully and thoroughly to tackle this mounting public health crisis,” Sharpless said.
Of course, no one wants kids using these products. Even the adults who use them and the industry that makes them.
However, this is ultimately a trivial fact at this point.
Given this announcement and the support from his officials, Trump now prepares to eliminate all non-tobacco characterized flavors.
Sharpless confirmed that the FDA will be moving up their final amendments to the controversial premarket approval requirement. The Tobacco Control Act of 2009 mandates the FDA to approve all tobacco and nicotine products before entering the market through a rigorous and costly scientific review. In theory, this policy makes sense. However, the framework that the FDA has developed is not sensible.
Building on that already established framework, the administration will show no quarter for products that they deem non-compliant, which include mint and menthol. The FDA also recognizes that this will result in a clearing of the existing market.
New policies are in the works too, according to my sources at the FDA.
At this point in time, I have no other details besides the fact that this is happening.
Sharpless further justified the announcement of a flavor ban as preliminary results from this year’s National Youth Tobacco Survey have shown an increase in vaping among minors. A troubling trend that carries more than public health implications, to say the least
The lung disease outbreak
Trump’s announcement comes at a time when the Centers for Disease Control and Prevention and dozens of state-level public health authorities are investigating a rash of noncommunicable respiratory illnesses in hundreds of people who said they vaped prior to being hospitalized.
Unfortunately, this outbreak has already claimed six lives in the past few months. However, authorities have highlighted that the majority of these cases are caused by individuals vaping THC products acquired through legal and illicit means. Only a few of these cases have been linked to regulated nicotine e-liquids. Other cases, like the most recent death in Kansas, have not offered details about the substances that were vaped.
Public health officials, however, have used the lung disease outbreak to advance adverse policymaking against the nicotine e-cigarette industry.
Filter editor Helen Redmond noted that the outbreak was weaponized as a typical drug war panic. I also wrote for Vaping Post that accuracy is needed in the health warnings about “vaping” that public health agencies release.
The agencies have failed to communicate accurate information, in this respect. The general public has the right to know that vaping can mean really anything. You can “vape” everything from vitamins and medications to DMT and meth. Omitting these details does a disservice.
My thoughts on this do not diminish the amount of concern I have for those impacted by the lung disease outbreak. The federal government, however, now views the need to use the suffering of the sick to bring about a new era of prohibition.
The term “drug warriors” is used to describe those in power who utilize their ability to change laws and regulations to punish ordinary people in the context of the American war on drugs.
Drug Warriors and Their Prey: From Police Power to Police State, authored by Richard Lawrence Miller in 1996, presents this term in a very balanced manner.
“Each society accepts certain kinds of drug use as normal,” Miller writes. Though he wrote this wonderful book during a period of peak stigma for illicit drug users, the sentiment applies now more than ever.
Allow me to explain. “Drug Warriors” have no determining characteristics. Both conservatives and liberals, far-left and far-right, religious and secular, can find common ground when the moral panic of a substance is enough to force the hand of government officials. These strange bedfellows band together, resulting in the dawning of prohibition.
Consider the words of some of the more prominent tobacco control advocacy groups in the country.
The Campaign for Tobacco-Free Kids released a statement endorsing the administration’s move to prohibit the sale of flavored e-cigarettes. The campaign’s president, Matthew L. Myers, openly endorsed “a comprehensive prohibition on flavored e-cigarettes” in the statement. Other groups like the American Lung Association and the American Cancer Society Cancer Action Network offered the same type of comments.
Republicans are even endorsing the Trump administration’s attempt to ban e-cigarette flavors.
For example, Sen. Mitt Romney, a Republican of Utah, recently released a letter that he sent to Azar and the FDA requesting that flavored products be recalled.
“I urge the agencies to strongly consider whether these devices meet the recall classification standards of dangerous products that predictably cause serious or temporary health problems,” writes Romney in his letter.
What we have here are two different political perspectives. Myers is an open supporter of many liberal causes. Romney is a prominent religious conservative. However, they share common ground on the issue of prohibiting flavors. If it were any other issue, these two men would likely be on opposing sides. Vaping is a different issue, clearly.
History is repeating itself
Regardless of who supports Trump’s ban, the sobering fact that remains is that the United States is beginning to repeat history.
President Herbert Hoover, a Republican, called alcohol prohibition “a great social and economic experiment.” He said these words, bidding the recent implementation of a constitutional amendment to ban the sale, manufacture, and transport of all alcohol nationwide.
What ensued was thirteen years of increased crime rates and a civil liberties disaster. Congress ratified the 18th Amendment to the U.S. Constitution with the logic that drinking is a direct link to the ills of society.
Nothing was solved.
Trump’s announcement about the flavored e-cigarette ban is vested in this tradition. To be specific, e-cigarettes are not officially outlawed in the United States. Instead, the regulatory framework at the federal level has opted to remove products that were once considered compliant.
There are methods for some flavored products to remain or return to the market after the FDA issues final rulemaking. However, most flavors will be lost and most firms will either shutter or go underground.
This is an unfortunate side effect of prohibition policies. Prohibitions are harbingers of illicit activity.
Since the regulatory framework is now so restrictive to allow market entry, only a few firms will be able to provide compliant products that come in mint and menthol flavors. This is not certain, though.
Companies like Juul Labs will take large shares of the existing legal market from smaller manufacturers or DIY shop owners who cannot afford the premarket approval application. A power vacuum will be filled by already powerful and monoplozing players.
This is a de facto prohibition, by design. Just like alcohol prohibition, the Trump administration is responding to nicotine e-cigarettes through a wave of moral panic. Due to the unfortunate happenings to a very small group of people (those inflicted with lung disease), the government is going to react in a fashion that harms the majority (vapers, shop owners, etc.). My observation, as I’ve reiterated, does not diminish the alarming rates of sickness linked to vaping. However, we need to remember that most people are not dying or are ill from vaping. In fact, this should be enough resolve for government regulators to openly work with the industry.
The implications of “smoking is safer” logic
Moral panic will exist without open collaboration from industry, academia, and government. The United Kingdom has a lesson for the United States.
The Guardian reports that Martin Dockrell, the head of tobacco control for Public Health England, believes that the vaping lung disease crisis in the United States is blown out of proportion. He reminded vapers in the U.K. that they shouldn’t believe all of the hype because of the country’s regulatory regime.
“Unlike the U.S., all e-cigarette products in the U.K. are tightly regulated for quality and safety by the Medicines and Healthcare Products Regulatory Agency and they operate the yellow card scheme, encouraging vapers to report any bad experiences,” he said, drawing a distinction between the two regulatory systems. Public Health England is also the public health authority in the U.K. to determine that vaping is a fraction of the harm of smoking cigarettes and they have a role in tobacco harm reduction.
Dockrell’s remarks are emblematic of the U.K. government’s approach to regulation. Though the regulation of e-cigarettes in that country is strict, they are still based on risk proportion and industry cooperation.
Here in the United States, the vaping industry wants to comply with the law. However, the Trump administration must give them that chance. I, and so many vapers and shop owners, would gladly comply with “strict” U.K-type rules built on the fact that vaping is a harm reduction strategy, flavors are important for vapers to stick to vaping, and nicotine caps are often accepted as viable compromises for product regulation.
There is also compassion in how the U.K. regulates nicotine use. They openly remind consumers that there are options outside of traditional pharmaceuticals and counseling to quit smoking.
Sharpless, Azar, and Trump on these standards of comparison are no better at regulating tobacco and nicotine than Australia. There, vaping nicotine is criminalized while cigarettes are still openly accessible.
This new heavy-handed approach to remove products that are not “FDA approved” from the market directly puts to the forefront the claim that “smoking is safe.” Many combustible products are “safe,” based on the logic built into the premarket approval pathway. As a consequence, nicotine vaping is now considered more dangerous than smoking.
How does the FDA, specifically, account for this? Former FDA commissioner Scott Gottlieb even announced that there is evidence for the role e-cigarettes can have in helping smokers quit. The agency’s actions suggest a different organizational culture.
Trump administration officials also will single handidly wipeout a multi-billion-dollar industry in a matter of a few weeks.
That is not even remotely acceptable.