Trump Administration takes a worrisome delay in crackdown on e-cigarettes

vaper-300x112The Trump Administration has sent disturbing signals on whether it will keep Big Tobacco from hooking more Americans on high-tech, nicotine-addictive products—so-called e-cigarettes used, especially by the young, for “vaping,” as well as cigars and hookahs.

The federal Food and Drug Administration, almost exactly a year ago, announced it would crack down, in particular, on e-cigarettes, forcing their makers to submit them for regulatory approval and oversight. Uncle Sam also barred makers from targeting the young with certain kinds of product advertising and giveaways. E-cigarettes still cannot be sold to consumers younger than 18 and free samples are still barred.

But the Washington Post has reported that the administration is delaying key aspects of its rules on vaping, cigars, and hookahs so newly installed federal health officials can get up to speed in their posts.

Disclosure of this postponement popped up in court actions in which Big Tobacco has fought e-cigarette regulation—especially deadlines to label products with addiction warnings,  provide information on ingredients in vaping liquids burned in “smokeless” devices, and curbs on attempts to characterize products with potentially deceptive terms like light, low, or mild.

Stalling the e-cigarette oversight also surfaced other regulatory challenges for Uncle Sam, notably conflicts of interest among key personnel. The Post noted that the acting U.S. assistant attorney general for the civil division, the lawyer who formally asked a federal court in Alabama to allow the government to delay its e-cigarette rules, had represented Big Tobacco (RJ Reynolds) when in private practice with the big firm Jones Day. The Justice Department said the assistant AG had signed on to the filing, only as a matter of form, not substance.

Here’s what’s more concerning: The Post also has reported that Scott Gottlieb, the incoming FDA chief, is a board member and holds stock in Kure, an e-cigarette maker. Now that he has been confirmed by the U.S. Senate, he has pledged to divest himself of his holdings, including his post and shares in Kure.

He also has said that he will recuse himself for a year from actions involving this and many other medical or health product companies with which he has past relationships. But it’s disconcerting to say the least that so high-ranking a health policy-maker in the administration not only has this declared conflict but also that it indicates his comfort with Big Tobacco.

In my practice, I not only see the harms that patients suffer seeking medical services, I know from experience that too many Americans have had their health wrecked by tobacco and nicotine use and exposure. I’ve written how cigarettes and smoking persist as a leading cause of cancer and heart disease, contributing to other health banes as well.

While the data are inarguable that cigars and hookahs are bad for us, the evidence is still out whether e-cigarettes provide a less lethal alternative to cigarette smoking. But no one should ever think their use is healthful. And the research grows by the day that vaping, hookahs, and cigars act as gateway uses that too often lead kids to cigarette smoking and nicotine addiction.

We need to watch federal officials’ actions in the days ahead to ensure regulators follow through, and that Big Tobacco has not undermined e-cigarette oversight to the detriment of our well-being.

Patrick Malone & Associates, P.C. listed in Best Lawyers Rated by Super Lawyers Patrick A. Malone
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