Unfortunately, the budget deal reached in Congress this week fails to include a rider which would have changed the "grandfather" or predicate date for electronic cigarettes from February 15, 2007 to the effective date of the regulation. This means that every electronic cigarette and vaping product on the market will have to submit a new tobacco product application to the FDA in order to stay on the market. In contrast, when the Tobacco Act was originally enacted in 2009, almost all cigarettes on the market received a free pass, not having to do anything to stay on the market. And since that time, not a single safety requirement has been placed on cigarettes by the FDA. In other words, the FDA's regulation of cigarettes has given these products a free ride with no safety requirements, no applications, and no required changes.
Despite the free ride given to cigarettes and the burdensome and prohibitively expensive new product applications required for electronic cigarettes, the Campaign for Tobacco-Free Kids had the gall to declare that regulating e-cigarettes in the same way as real cigarettes would have been a "giveaway" to the tobacco industry.
In a press release yesterday, entitled "Budget Agreement Protects Kids and Health by Rejecting Tobacco Industry Giveaways," the Campaign for Tobacco-Free Kids stated:
"The budget agreement reached by congressional negotiators delivers
critical victories for America’s kids and health over the tobacco
industry by rejecting proposals to greatly weaken FDA oversight of
electronic cigarettes and cigars and slash funding for the CDC’s
programs to reduce tobacco use. By rejecting these special interest
giveaways to the tobacco industry, this agreement bolsters the nation’s
fight against tobacco use, the number one cause of preventable death. The budget agreement does not include a provision, approved by the
House Appropriations Committee, to limit FDA oversight of e-cigarettes
and cigars already on the market, including many candy- and
fruit-flavored products that have been introduced in recent years and
proven popular with kids. The agreement preserves the FDA’s ability to
review these products and take action to protect our kids."
(Note: I am not in disagreement with the Campaign's opposition to slashing funding for tobacco control programs.)
The Rest of the Story
Far from being a giveaway to the tobacco industry, the appropriations rider would have actually made it much more difficult for cigarettes to compete in the market, because it would have opened the market to stiff competition from tobacco-free cigarettes (e-cigarettes and vaping products). Instead, the FDA regulations will now decimate the electronic cigarette industry, allowing tobacco cigarettes to have free reign over the entire nicotine market. Financial analysts had predicted that if allowed to remain on the market, electronic cigarettes would have eventually taken over 50% of the tobacco cigarette market. So the truth is that by rejecting the rider and devastating the chief competitors to cigarettes, Congress has unquestionably bequeathed the tobacco industry with a giveaway.
In what way does the Campaign believe that regulating tobacco cigarettes less stringently than tobacco-free cigarettes is a blow to the cigarette industry? The reality is that had the rider passed, it would have cut into the profits of tobacco companies by ensuring that the vaping market is not contracted. Instead, the FDA regulations are going to result in the elimination of most of the vaping market, leaving only the cigarette companies and a few large independent e-cigarette companies to control the market. As I have noted, the cigarette companies (Altria and Reynolds American) were both supporting the rider in spite of their short-term economic interests because they are actually committed to a vigorous tobacco-free nicotine market in the United States. In contrast, the Campaign for Tobacco-Free Kids is doing everything it can to make sure that the only choice for smokers is to continue smoking the deadliest of consumer products: tobacco cigarettes.
The Campaign is wrong in stating that the appropriations rider would have removed the FDA's ability to review e-cigarette products and take action to protect our kids. The rider would have actually strengthened the FDA's ability to review and oversee these products and to protect kids by forcing the agency to actually set safety standards for these products, put an end to exploding batteries, and ensure quality control for all products. The rider would not have prevented the FDA from regulating, reviewing, overseeing, or requiring changes in the safety, sale, or marketing of these products.
Gregory Conley, president of the American Vaping Association, hit the mark in stating:
"This deal protects cigarette markets. Congressional leaders have squandered a real opportunity to benefit both public health and small businesses across the country. The perverse outcome of this failure to act is that smoke-free vapor products will be treated far more harshly by the FDA than deadly tobacco cigarettes ever have been."
To add insult to injury, it was the Campaign for Tobacco-Free Kids which negotiated the deal that led to the 2009 Tobacco Act and which crafted it in such a way so that it gave a free pass to virtually all cigarettes on the market. Moreover, it was the Campaign which opposed banning menthol cigarettes, demonstrating that it is full of crap in pretending to be concerned about the protection of "our kids."
With the rejection of this rider, the next best hope of doing something meaningful to combat the smoking epidemic is that the Office of Management and Budget will reject the FDA deeming regulations, sending them back to the agency and requiring it to comply with Executive Order 12866.