The Trump Administration’s Misguided War On Vaping

The Trump Administration is considering banning flavored electronic cigarettes. This would be a a bad idea.

One of the biggest contributors to what has become both a measurable and observable decline in smoking over the past decade or so has been the rise of what has been referred to as “electronic cigarettes” and the practice of what has come to be known as vaping. Essentially, e-cigarettes are basically a nicotine delivery device that does not produce smoke and does not involve the inhalation of the numerous dangerous chemicals that one would inhale from just one conventional cigarette.

These devices began appearing roughly a decade ago and, as they have gone down in price, they have become more and more popular both among former smokers and among teenagers. One of the reasons for that is that several of the companies that sell these devices have been marketing flavors for their product other than one that simulates a traditional or menthol cigarette. Allegedly, this is one of the reasons that vaping has become popular among teenagers and it has led several states to impose age restrictions on the sale of vaping products. More recently, there have been a handful of deaths (six nationwide according to the most recent count) that may or may not be connected to the use of flavored vaping products. The connection between this disease and vaping, though, has not been proven and there’s at least some speculation that the disease may be rooted in the use of off-market and bootleg flavoring components rather than those sold by reputable e-cigarette companies such a Juul.

Now, there are reports that the Trump Administration is considering banning essentially all flavored e-cigarette products:

The Trump administration said on Wednesday that it would ban the sale of most flavored e-cigarettes, at a time when hundreds of people have been sickened by mysterious lung illnesses and teenage vaping continues to rise.

Sitting in the Oval Office with the government’s top health officials, President Trump acknowledged that there was a vaping problem and said: “We can’t allow people to get sick. And we can’t have our kids be so affected.”

Alex M. Azar II, the health and human services secretary, said that the Food and Drug Administration would outline a plan within the coming weeks for removing flavored e-cigarettes and nicotine pods from the market, excluding tobacco flavors. The ban would include mint and menthol, popular varieties that manufacturers have argued should not be considered flavors.

The White House and the F.D.A. have faced mounting pressure from lawmakers, public health officials, parents and educators, who have grown alarmed by the popularity of vaping among teenagers but have felt powerless to keep e-cigarettes away from students and out of schools.

This summer’s startling reports of vaping-related respiratory illnesses, which now near 500 cases in nearly three dozen states and have possible links to six deaths, have only amplified concerns and renewed calls for a total ban on the largely unregulated pipeline of e-cigarette and cannabis vaping products.

Just last week, Michigan became the first state to prohibit the sale of flavored e-cigarettes. Gov. Andrew M. Cuomo of New York also called for a ban, and Massachusetts and California are considering similar measures. San Francisco approved an e-cigarette ban earlier this year, which Juul Labs, the dominant seller in the United States, is lobbying to reverse through a ballot initiative this November.

Last year, the F.D.A. retreated from a threat to prohibit the sale of e-cigarettes as the increased rates of teenage use took public health experts by surprise. Public outrage stoked by accusations that Juul Labs was deliberately targeting youths led the company to voluntarily stop shipping most flavored pods, like mango and cucumber, to thousands of retail locations around the country.

Agency officials had hoped that making flavored products less accessible would reduce teenage use of the popular devices, but instead the latest figures show another increase in youth vaping, Mr. Azar said, after meeting with the president on Wednesday.

Five million minors, mostly in their high school years, reported that they had used e-cigarettes recently, he said. About one-quarter of the nation’s high school students reported vaping within the last 30 days in this year’s annual survey, up from 20 percent last year.

Speaking to reporters on the White House lawn, Mr. Azar said that removing flavor pods from stores just prompted youths to shift from fruit flavors to menthol and mint, which were still available, rather than to stop vaping altogether.

“What we’ve seen has been, and it may be connected, a huge spiking of children’s utilization of mint and menthol e-cigarettes, which remain, by all manufacturers, available in retail stores,” Mr. Azar said.

The issue appeared to hit home at the White House, where Melania Trump attended the meeting with Mr. Azar, Dr. Ned Sharpless, the acting F.D.A. commissioner and the president. “She’s got a son,” Mr. Trump said of their teenage child, Barron. “She feels very strongly about it,” he said.

Juul has repeatedly denied that it aimed its products at minors, but its sleek devices have become more and more popular and are easy to conceal. And even though the company’s array of flavors had disappeared from shelves, they were still available online, and a host of competitors sprouted up with lookalike versions and similar flavors to fill the vacuum. Juul had said that nearly 85 percent of its sales were from mint and other flavors, and that its decision to stop shipping them to stores had dented their sales.

On Monday, the F.D.A. took action against Juul, sending a warning letter accusing the company of violating federal regulations by promoting its vaping products as a healthier option than cigarettes.

As for the agency’s decision to prohibit most flavors, Ted Kwong, a Juul spokesman, said the company would comply. “We strongly agree with the need for aggressive category-wide action on flavored products,” he said.

Public health groups have long clamored for strict curbs on e-cigarettes and flavors, especially because they worried that the soaring use among youths was hooking a new generation on nicotine after decades of a decline in smoking rates.

More from The Washington Post:

Trump administration officials, alarmed by new data showing a huge jump in vaping by young people, said they are moving to ban most flavored e-cigarettes, a major development that could result in sweeping changes in the sprawling market.

In an Oval Office meeting Wednesday that included first lady Melania Trump, Health and Human Services Secretary Alex Azar and acting Food and Drug Administration commissioner Norman E. “Ned” Sharpless, President Trump said: “We can’t allow people to get sick. And we can’t have our youth be so affected.” He added that the first lady, who Tuesday tweeted a warning about vaping, feels “very, very strongly” about the issue because of their 13-year-old son, Barron.

The administration’s move comes as health officials across the country investigate more than 450 cases, including six deaths, of lung disease linked to vaping. Many patients have reported using cannabis-related products, but authorities have not ruled out any specific type of vaping. With the picture still murky, critics have seized the moment to press for tougher regulation of conventional e-cigarettes, which come in sweet and fruity flavors that have been favored by many young people.

Azar said Wednesday the administration intends to “clear the market” of flavored e-cigarettes to reverse a worsening youth vaping epidemic. He said preliminary data from the 2019 National Youth Tobacco Survey shows a continued, troubling rise in youth e-cigarette use. The data indicated more than a quarter of high school students have used e-cigarettes in the past 30 days — up from a little over a fifth in 2018. The overwhelming majority of students said they used fruity, menthol or mint flavors.

Azar said the FDA is finalizing a plan on flavored e-cigarettes in the next several weeks that probably would go into effect a month later. The policy, he said, would require most flavored e-cigarettes, including mint and menthol, to be removed from the market. The flavored products would not be allowed back on the market until — and if — they receive specific approval from the FDA.

The policy wouldn’t affect tobacco-flavored e-cigarettes, whose manufacturers would have until next May to file for approval.

In a statement late Wednesday, a spokesman for Juul Labs said, “We strongly agree with the need for aggressive category-wide action on flavored products. We will fully comply with the final FDA policy when effective.” People on both sides of the issue, however, said the FDA might face lawsuits from some industry interests as it moves forward with the tougher policy.

Matthew L. Myers, president of the anti-tobacco group Campaign for Tobacco-Free Kids, said the plan is a “long way from the finish line,” but added, “If, in fact, they pull flavored e-cigarettes from the market, it is an extraordinary step in the face of a real crisis.” He said that flavored e-cigarettes are fueling a rise of youth e-cigarette use, “which apparently has gotten dramatically worse over the last year.”

The Vapor Technology Association, an industry group, said it would be a “public health travesty” to ban flavored e-cigarettes. Such “government overreach,” the group said, will result in the closure of thousands of small vape shops and force many Americans “to switch back to deadly cigarettes.”

(…)

The regulation of e-cigarettes has a complicated history. The FDA got the authority to regulate tobacco products in 2009, when President Barack Obama signed the Family Smoking Prevention and Tobacco Control Act. The agency extended its authority to e-cigarettes in 2016, saying existing products could stay on the market while pursuing FDA approval — a policy called “enforcement discretion.”

Product applications for FDA approval were due in 2018. Azar said Wednesday that Obama administration delays in regulating e-cigarettes helped spawn the eventual youth epidemic.

But the Trump administration itself contributed to delays in some key areas. When Scott Gottlieb became FDA commissioner in 2017, he pushed the deadline for product applications back to 2022. He billed it as part of a strategy to move smokers to a less harmful alternative while moving to reduce nicotine in conventional cigarettes.

But a year ago, after Gottlieb received data showing a surge in youth vaping — caused primarily by Juul’s huge popularity — he changed course and proposed new sales restrictions for most flavored products. He also moved up the production application deadline to 2021. And he warned that some types of products might have to be banned if youth use kept increasing.

Gottlieb left the administration in April and was replaced in acting capacity by Sharpless. Subsequently, a federal judge in Maryland moved the product application deadline even earlier, to May 2020. If the administration moves forward with its flavor ban and prevails in potential lawsuits, that timetable would be upended, with most e-flavored products probably prohibited much earlier.

There are, obviously, a number of issues tied together here that really ought to be dealt with separately. When that is done, it seems fairly clear to me that a complete ban on flavored vaping products is misplaced and that it is likely to have unintended consequences that are worse in terms of public health than any alleged threat from vaping itself.

First of all, it is, I suppose, reasonable for states and the Federal Government to regulate and even ban entirely the sale of e-cigarettes, whether flavored or not, to teenagers. For that reason, I wouldn’t necessarily oppose laws or regulations banning the sale of electronic cigarettes generally and flavoring products for the devices specifically. Personally, I would place the age limit at 18 rather than 21 as I would for most other similar restrictions, such as alcohol, firearms, and tobacco cigarettes. Whatever the age limit is, though, it’s clear that the law has always treated legal products differently when it comes to children and I think a reasonable case can be made regarding the sale of vaping products to kids who are still in High School.

Beyond that, though, I am skeptical of the idea of outright bans on these products when it comes to adults. As long as the products are safe, and there’s every indication that they are, then adults should be free to purchase and use them. Obviously, the products themselves should be subject to the same FDA regulations that similar products are. Additionally, the disease that seems to be impacting a small group of vapers, most of them teenagers, ought to be investigated and, if it is related to ingredients in the product then appropriate steps should be taken to deal with that. Beyond that, though I cannot see any justification for a complete ban on flavored e-cigarettes.

A final consideration to be taken into account here is the potential unintended consequences of a ban might be if the Trump Administration goes through with it. As I noted, e-cigarettes first rose to popularity thanks to the fact that they have been considered a generally safe alternative to tobacco cigarettes. Generally speaking, using an e-cigarette means ingesting relatively harmless water vapor. While this is a means for nicotine delivery, it is far safer than smoking a cigarette, which means ingesting as many as 20 other potentially unsafe chemicals into one’s body, something we already know contributes to the development of lung cancer. Additionally, the “smoke” that is emitted by the e-cigarette when one exhales is basically than water vapor into the air, which is certainly healthier than the second-hand smoke that tobacco produces.

Use of these electronic products has been shown to be an effective means of quitting smoking and is often pointed to as one of the reasons we have seen a decline in smoking over the past decade or so. Indeed, in the days since the Administration announced this move, it has been reported that many people who use electronic cigarettes would go back to tobacco. This includes friends I’ve communicated with on social media who have been vaping for four years and has successfully quit smoking as a result. If this ban leads back to smoking, then what good has it has accomplished? None that I can see. Instead, much like past attempts at prohibition it seems guaranteed to do more harm than good.

FILED UNDER: Donald Trump, Law and the Courts, Politicians, Science & Technology, US Politics, ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Neil Hudelson says:

    This entire saga has been incredibly frustrating. Every report I read on it has a line that states “researchers do not know if the disease is caused by common products like Juuls, or if it’s from TCH cartridges or “DIY” vape kits.”

    Well we may not know, but we can sure as hell start eliminating some sources. Juuls (and blu’s and the rest of the most common nicotine vapes) have been on the market for about a decade, with no measurable effects on the vapers. This disease started appearing a few months ago. Unless they changed their formula four months ago (and I have not read any reports that they have) Juuls/Blus are not to blame.

    Multiple reports have stated that the disease has appeared “in people who vaped THC cartridges, and people who didn’t vape THC cartridges.” Only one article, I think in WaPo, finally stated the obvious, that in states where THC is illegal, minors may not be all that upfront about their THC use. That is, relying on self-reporting is foolish.

    Here’s what did happen a few months ago, though. The black market price of THC cartridge in the midwest has been about $50-$70 dollars. Three months ago, the price plummeted to $30-$40; a 40%-60% decline in price. That tells me either demand has plummeted and suppliers are now holding on to too much stock, or some new source has flooded the market.

    You know what else changed? Four months ago, the cartridges you’d buy on the black market were almost always medical. They were completely sealed, had markings that they were from California or Colorado, advertised their ingredients, etc. Now? The $30 cartridges have willy wonka or kool-aid symbols on it (I’m sure those brands haven’t licensed their image for vapes), and are always in unsealed cardboard boxes.

    This tells me there’s a supply chain from outside the U.S. flooding the market with shoddy vape cartridges.

    It’s the prohibition on pot that’s causing this, not your juul.

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  2. CSK says:

    Trump will probably have forgotten about this ban by tomorrow, if he hasn’t already.

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  3. Daryl and his brother Darryl says:

    Again…more people have died in Trumps concentration camps, than have of vaping.

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  4. KM says:

    @Neil Hudelson:

    This tells me there’s a supply chain from outside the U.S. flooding the market with shoddy vape cartridges.

    The new Fentanyl?

    It’s the prohibition on pot that’s causing this, not your juul.

    They will never admit that. It’s easier to play off existing tropes and sentiments that admit to decades old policy disasters. Vaping = smoking and smoking kills, therefore vaping = kills.

    As discussed on the open thread by folks more knowledgeable then I, there’s legit medical concerns to be had about this tech and it’s long-term effects on the body. We simply don’t know because the tech’s not old enough for us to be sure. But it *is* old enough to give us a good baseline for what to expect. That’s why it’s so odd they are all suddenly like “vaping is killing our kids because it’s bad!!” when it’s pretty damn clear this is a recent development so they should be looking for recent changes.

    Personally, I think this is Trump searching for something he can “win” on with soccer moms. He won’t protect the kids from being shot in school but he can help keep them “drug-free!” Ignore the kids he’s stuffing in cages; he’s keeping your kid’s lungs from exploding! Vote Trump y’all – he stopped the Great Vape Plague of 2019!

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  5. OzarkHillbilly says:

    If this ban leads back to smoking, then what good has it has accomplished? None that I can see.

    You must not hold stock in RJ Reynolds, Doug.

    @KM:

    I think this is Trump searching for something he can “win” on with soccer moms.

    This should be a theory easy to prove or disprove. Has FOX been reporting on the 6 deaths?

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  6. CSK says:

    @OzarkHillbilly: Fox has reported on the deaths, according to my Google results.

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  7. OzarkHillbilly says:

    @CSK: Dingdingdingding… We have a winner. My question was not serious, just sarcastic. I should have known the answer would be positive.

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  8. CSK says:

    @OzarkHillbilly: I know, but I couldn’t resist checking anyway.

    Didn’t Trump credit Melania with inspiring this? Must be part of his effort to win over soccer moms. The bonus is that he can turn around and blame his wife if it backfires.

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  9. grumpy realist says:

    @Neil Hudelson: It’s probably crappy stuff getting produced in some two-bit factory in China…

    We were almost hired by a US manufacturer to test exactly what WAS included in the vaping liquids from abroad….also to look at the degradation of the heating wires over time and the leaching of the wire materials into whatever you’re vaping. (How to get cadmium into your body without knowing.)

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  10. Dave Schuler says:

    As you note there are multiple issues. e-Cigarettes as a means of reducing smoking has not been quite as unequivocally helpful as you suggest. There have been some studies that have found that they actually lead to more smoking.

    Additionally, is there actually any way to prevent or regulate a black market in the cartridges or liquids? I doubt it. The issue is the devices themselves.

    Finally, the number of diagnosed health issues and deaths is actually extremely small. We shouldn’t forget that this is a country of 330 million people. There have been a few deaths due to drinking Coca Cola (not the sugar or weight gain) and thousands attributed to the sugar or weight gain. How many is too many?

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  11. MarkedMan says:

    In another thread I’ve posted as to why we should not assume that vaping is safe and I won’t repeat those arguments here. Instead I’ll propose a thought experiment: Suppose someone created a substance that, while totally safe, if ingested even once would create a lifelong and overwhelming addiction. Would a society be morally and ethically correct to craft a governmental ban on this product?

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  12. mike shupp says:

    @MarkedMan: You might amend your question to ask whether we would permit long term addiction to substances which might promote a better life. My thought is, we do have an answer to this and it’s YES. The example coming to mind first is Insulin, used virtually daily by any number of diabetes patients.

    Not quite as extreme but still semi-valid — I take four medications (Advair, Montelukast, Spiriva, and Albuterol) for treatment of chronic bronchitis. The cost, before Medicare and the state of California make their contribution, is about 50 bucks per day — which is probably on a par with heroin and cocaine addiction. But, of course, much more socially acceptable, although it’s unlikely that my usage will end before my death.

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  13. Scott O says:

    Auto accidents kill on average 100 people every day in the US. We never hear about most of them. 6 deaths possibly related to e cigarette usage only make the news because it’s something new.

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  14. Erik says:

    @mike shupp: i understand what you are getting at, but use of any of the medications you mentioned is not addicting

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  15. Matt says:

    @Scott O: I guess we’re due for another freak out ala reefer madness reds and crack….

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  16. Franklin says:

    @grumpy realist: Sorry if I’ve missed this in the past decade or so, but when you say, “We were almost hired …”, who is *we*? You seem to dabble in all sorts of interesting stuff. I thought you were like an IP lawyer or something?

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  17. GHW says:

    The medical reports (not lay literature) all support the association of THC oil in the vaping related lung damage. Depending on the report and cases grouped together, 80-100% of patients added THC to the vaping. The process of adding THC to the process involved vitamin E which is an oil, probably a medium to extract the cannabis oil.

    I am not a fan of smoking or vaping, but I am a proponent of policy measures being based on both facts and a hierarchy of values. Clearly, a broad ban on vaping is not supported by either.

    https://www.cdc.gov/mmwr/volumes/68/wr/mm6836e1.htm

    https://www.cnbc.com/2019/09/12/cdc-narrows-investigation-of-mysterious-vaping-related-lung-disease.html

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  18. MarkedMan says:

    @GHW: So a couple of substances widely used and not considered dangerous if ingested in their usual fashion caused hundreds of serious injuries and at least six deaths when ingest via vapes. Sorry, but I hVe to disagree with you. This is exactly the reason vape companies should be required to safety test their products before selling them. For those who are unaware, they are not required to (and do not) test the health safety of their products or additives. They are conducting the ultimate Libertarian experiment: if their customers die they will go out of business. Libertarianism triumphs!

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  19. Matt says:

    @MarkedMan: Well like Trump you can disagree with reality all you want but that doesn’t change anything. Everything GHW said is true. Vaping in Europe and Asian has been a thing for far longer than it has been here and they don’t have the issue we’re having. They also don’t vape THC juice that contains vitamin E acetate like we do in the USA. Personally I originally thought it was some kind of cut causing the problem but it looks like the usage of vitamin E acetate is the problem based on tests conducted so far.

    There are tons of molecules out there that can go from helpful to deadly depending on the method used to get it into the body. Sometimes just changing a binding point of a single atom is enough to make a useful molecule into a deadly one.

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  20. MarkedMan says:

    @Matt:

    There are tons of molecules out there that can go from helpful to deadly depending on the method used to get it into the body. Sometimes just changing a binding point of a single atom is enough to make a useful molecule into a deadly one.

    That’s true. Which is why the fact that the vaping companies are completely unregulated seems so dangerous to me. They introduce new flavorants and other additives based solely on how they taste. Perhaps they perform some short term animal tests to see if there are any immediate deadly reactions but they aren’t even required to do that.

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  21. KM says:

    @MarkedMan :
    But it’s increasingly looking like it’s not the companies like Juul that are at fault. These kids seems to be vaping crap they got online or from drug dealers. Hell, the kid suing even admits buying from a drug dealer! It’s really hard to argue about flavors targeting kids and potentially unsafe additives when the kids are out there scoring god knows what to vape. You can’t blame vaping as an dangerous action if someone’s using it in a non-recommended method. You can’t blame a car manufacturer if you use cheap brake oil that got metal shavings in it – you misuse a product by utilizing non-authorized items with it, you can’t sue them them if you hurt yourself when it goes bad.

    This is a money-grab, plain and simple. Regulation should exist, that I do agree. However, punishing a company like Juul for a kid hitting up a drug dealer is grossly unfair. It’s not their fault someone’s using after-market, black market crap. What’s happening is people are making questionable life choices and then suing companies, blaming them and demanding money. Notice they’re not asking for regulations or to shut down what could be a dangerous practice – they want cold, hard cash.

    We do need to have a national discussion on vaping and it’s safety regulations. But not because of this crap, because of children scoring illegal THC and then blaming “flavoring” and “marketing towards children”. Unless the drug dealer was plastering candy-scented ads all over a school, those are red herrings being tossed out to divert blame. It’s pretty clear the affected kids were trying to get high and didn’t care what they were inhaling or where it came from. Regs on Juul wouldn’t have stopped this and neither will the lawsuit.

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  22. Matt says:

    @MarkedMan: Regulations have applied to producers of vape products and juices since at least 2016 when vape products were included along with “all tobacco products” as being regulated by the FDA. THC juices are not regulated as they are still illegal.

    https://www.fda.gov/tobacco-products/rules-regulations-and-guidance/fdas-deeming-regulations-e-cigarettes-cigars-and-all-other-tobacco-products

    The blackmarket juice (THC infused and possibly some knock off nicotine juices) that is causing the problem is made by companies that don’t care about the regulations. Why care about regulations when your product isn’t even legal?

    Seems New York has kicked into full on reefer madness over vaping. I hope this isn’t going to become a trend. I know several people who have used vaping to completely quit smoking. Sure some have stayed on the nicotine train but at least they have managed to lower their intake greatly. It’d be a shame to lose a method of quitting or cutting back because people panicked over nothing…Which we as a country have a tendency to do…

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  23. Ken_L says:

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