E-cigarettes

Why Vape? E-Cig Companies Are Not Allowed to Say.

The FDA is suppressing potentially lifesaving information about the health advantages of e-cigarettes.

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The e-cigarette regulations that the Food and Drug Administration (FDA) unveiled this month pose a grave threat to products that have the potential to dramatically reduce smoking-related disease and death. The most obvious problem for the e-cigarette industry is that manufacturers of vaping equipment and e-liquids must persuade the FDA that allowing their products to remain on the market is "appropriate for the protection of public health"—a challenge that will be prohibitively expensive for all but the biggest companies and may prove impossible even for them. A lawsuit filed this week by Nicopure Labs, which sells e-liquids and vaping hardware, highlights another troubling aspect of the FDA's regulations: censorship of potentially lifesaving information about e-cigarettes.

Even if a few companies survive the shakeout caused by the FDA's onerous regulations, they will not be allowed to tell consumers the truth about their products. According to the FDA, any intimation that noncombustible, tobacco-free e-cigarettes are safer than the conventional, tobacco-burning kind—which they indisputably are—transforms them into "modified risk tobacco products," which can be marketed only with prior approval. To get the FDA's permission, an applicant must demonstrate that its product will not only "significantly reduce harm and the risk of tobacco-related disease to individual tobacco users" but also "benefit the health of the population as a whole, taking into account both users of tobacco products and persons who do not currently use tobacco products."

The upshot is that any e-cigarette company selling its products as a less hazardous alternative to the real thing would render them "adulterated," inviting FDA seizure. That could happen even if a company truthfully described its product as "smokeless" or "smoke-free." The FDA says it will "evaluate an [e-cigarette] manufacturer's use of 'smokeless' or 'smoke-free' (and similar descriptive terms) on a case-by-case basis." The FDA also looks askance at e-cigarette manufacturers who "advertise that [their products] do not contain tobacco"—a perfectly accurate statement, albeit a potentially confusing one in light of the agency's arbitrary decision to treat e-cigarettes as "tobacco products." The agency's rationale for applying that label to products that contain no tobacco is that the nicotine in e-cigarettes is derived from tobacco, an argument that also turns nicotine gum, patches, lozenges, sprays, and inhalers into tobacco products. 

If e-cigarette companies are asking for trouble merely by accurately describing their products, it should go without saying that they are not allowed to talk about the main advantage of vaping: It is something like 95 percent less hazardous than smoking because it exposes consumers to far fewer toxins and carcinogens in far lower doses. Even a straightforward chemical comparison of the aerosol produced by an e-cigarette and the smoke produced by a tobacco cigarette is forbidden, lest it lead consumers to the accurate conclusion that they can dramatically reduce the health risks they face by vaping instead of smoking. In other words, the FDA is actively suppressing truthful information that would encourage people to make healthier choices.

Nicopure's lawsuit argues that the FDA's censorship "violates the First Amendment by prohibiting manufacturers, including Nicopure, from making truthful and nonmisleading statements regarding vaping devices, e-liquids, and related products." Although the FDA dismisses First Amendment concerns about its regulations, it seems to me that Nicopure has a strong case. The Supreme Court has arbitrarily declared that "commercial speech" receives less First Amendment protection than other kinds of expression. But restrictions on what businesses say while trying to sell people stuff still must meet a pretty strict test: As long as the speech is not misleading and concerns legal activity, regulations must be narrowly tailored to directly advance a substantial government interest.

One is hard pressed to identify any legitimate interest that the FDA advances by preventing an e-cigarette company from saying its product does not contain tobacco, does not produce smoke, and generates fewer toxins at lower levels than conventional cigarettes do. When the FDA announced its regulations, it claimed "FDA is taking this action to reduce the death and disease from tobacco products." Its speech restrictions undermine that goal, impeding the success of products that the Royal College of Physicians says have "the potential to prevent almost all the harm from smoking."

In defense of its regulations, the FDA cites a 2012 decision in which the U.S. Court of Appeals for the 6th Circuit rejected a First Amendment challenge to premarket review of "modified risk" claims. That ruling relied heavily on the tobacco industry's history of promoting "light" and "low-tar" cigarettes as healthier alternatives to "full-strength" cigarettes?claims that were misleading because they relied on machine testing and did not take into account humans' tendency to compensate for lower nicotine yields by changing their smoking behavior. There is no comparable history of misleading claims in the e-cigarette market, no question that vaping is less dangerous than smoking, and no doubt that the statements the FDA has forbidden (e.g., "this product does not produce smoke") are true.

Tellingly, the 6th Circuit contradicts itself in discussing the appropriate motives for restricting commercial speech. "A State's paternalistic assumption that the public will use truthful, nonmisleading commercial information unwisely cannot justify a decision to suppress it," the appeals court says, quoting a 1996 Supreme Court ruling that overturned Rhode Island's ban on the advertisement of liquor prices. "This limitation is enforced even where the pervasiveness of such information might persuade the public to make what the government perceives as a bad choice, because 'the First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good.'"

Five paragraphs later, the appeals court says censorship of truthful, nonmisleading claims could be justified based on the fear that "the marketing of a product as 'modified risk' [might raise] the aggregate number of people (especially juveniles) who use tobacco because it leads them to believe than an unsafe product is relatively safe, instead of merely affecting the apportionment of current users." That is precisely the sort of fear that the FDA cites to justify its regulations, and it is precisely the sort of motivation that the Supreme Court has rejected. The FDA wants to keep people in the dark for their own good, because they might not use information the way it thinks they should.

This article originally appeared at Forbes.com.

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57 responses to “Why Vape? E-Cig Companies Are Not Allowed to Say.

  1. Gotta’ say that vaping is the dumbest fucking thing I’ve seen come down the pike in a long time.

    1. Gotta’ say your a big douchebag and you can shove a pike up your ass.

      1. *you’re

    2. In that case, don’t do it. But please, leave alone those of us who quit smoking by vaping.

      1. mis: My stated opinion bothers you?

        1. It adds to the pearl-clutching idiocy that’s going on about vaping and it’s completely unhelpful. People should be encouraged to quit smoking. They don’t need to be told “It’s stupid, hurr-durr.”

          1. “They don’t need to be told “It’s stupid, hurr-durr.”
            Oh the poor dears. I guess the libtard notion that citizens are free to express themselves doesn’t apply to criticism of drug addicts.

            1. Did you miss the part about quitting smoking? Not a very bright person, are you?

      2. Have you had any luck with that route? I’m trying to quit and the cravings are awful. If vaping helps I’m willing to try it.

        1. Worth a shot. It gives you nicotine and a somewhat similar experience to smoking.

        2. Coming up on three years strong. I smoked for more than 35 years and tried to quit multiple times using all the methods. I went for nearly a year once (cold turkey) and eventually found myself smoking again. None of the NRT methods worked for more than a couple of days. I quit smoking the same day I picked up my vape. I still have the same 1/2 pack of cigarettes leftover from that day. It sits in my vape cupboard untouched.

          It took 4 months to step down and get rid of the nicotine. Now I use ejuice with nicotine when I want to concentrate on something, but for me it isn’t the addictive substance it used to be. But, I can go for hours without my vape now – I could never do that with smoking.

          Do a search for a beginner’s guide to vaping and get fairly good gear – Don’t go with the gas station crap that the cigarette companies make. It doesn’t work for most people. Do another search for ECF (Electronic Cigarette Forum) and ask questions. The folks there are awesome.

          1. THANK YOU!

    3. You must not be paying much attention. I can think of about a million dumber things right off the top of my head.

      1. By god you’re right! I see dumber things every day. Mostly on the Reason comment threads!

    4. I like my addiction to nicotine. Isn’t it pure evil to force me to die to sustain my otherwise harmless addiction? Plus my vape is peachy, oh and honey basil with cbd oil is the tits.

  2. I’ve been a long time libertarian leaning person, politically speaking, but never really much of an activist. Guess that goes with the territory. But this issue is one that is like nails to the proverbial chalk board to me, and I don’t even “vape”. I’ve seen first hand two people’s improvement in function after switching from cigarettes to e-cigs, it’s not even debatable how much better it is. Is it great? Maybe not but these FDA overlords must be overthrown from their zealous high tower.

  3. So again, it’s for the children huh? I’d like to see their studies that say vaping leads to smoking in teenagers, or that teens have an easier time getting their hands on vaporizers instead of cigarettes. This is all just the road to taxing vaporizers the same as cigarettes. Gotta make up that revenue somewhere. If people quit, the state gets less money. Incentives apparently matter.

    1. You are correct. There was a spike in teenage vaping. It happened at the same time that personal vaporizers were *introduced* to the American market (uh, that explains why there was a spike – it didn’t exist before) and a huge drop in cigarette use. Of course the screeching media only showed the “alarming” uptick in vaping.

      It didn’t take a genius to see that the teens who used to take up smoking are now using vaporizers. The kids who would have picked up a pack of cigarettes are more likely to pick up an APV. There is a decrease in teens smoking. Vaping isn’t leading to smoking, it’s doing the opposite. It’s making them less likely to become smokers.

      1. BUT BUT BUT… somebody who vapes might someday decide to “graduate to the real thing”!!!

        Because, you know, smelling like cigarette smoke is socially acceptable.

        1. The smell of cigarette smoke and Axe body spray mingling in the air is the world’s greatest aphrodisiac.

          1. Only if they’re vaping Axe body spray.

        2. My step-son never touched cigarettes. Hates it that his mom smokes. But, he sure as heck is not going to switch to cigarettes. Especially, since, his favorite is tasting like cinnamon cookies! As a medical professional, I see these politicians voting to kill people, instead of helping them! I think vaporizing should be allowed, everywhere! It might encourage others to switch! I ever smoked cigarettes, either. Never stupid enough to waste my money on it!…………(;-P

          1. never smoked! stupid machine!

    2. This is all just the road to taxing vaporizers the same as cigarettes.

      If it were that, why wouldn’t they have done so already? What’s keeping them? So I gotta believe it’s not that.

      1. In order to impose a “sin tax” they have to convince a majority that vaping is sinful and dangerous to THE CHILDREN. We are watching the process by which self interested parties create this conventional wisdom. I’ve recently seen “news” stories claiming that there is an epidemic of children drinking vape juice, that vaping negatively affects the immune system, that without intervention masses of teenagers will be helpless vape addicts etc. I’m 60 years old and I’ve watched this process many times, This one is right out of the play book.
        Those of us who have switched from smoke to vapor enjoy better health and also save a lot of money. Not because cigarettes are expensive to produce, but because the vast majority of the cost goes to parties other than the manufacturer. The marijuana legalization movement has always used the argument, Tax it Regulate it Ban minors from getting it. As long as you’re willing to feed the beast nothing else really matters. Follow the money. A multi billion dollar revenue stream is blowing away in a cloud of vapor. This shall not stand.

  4. Nuclear reactors produce many times more power per person even theoretically injured than anything capable of lighting a city, yet is suppressed by another entrenched socialist bureaucracy. Perhaps the fact that nuclear explosives were designed specifically to incinerate socialist bureaucracies and their military installations may have something to do with it. The “War on Socialism” was a call to arms for a religiously fanatical ideology that survives to this day propped up by hysterical fears of radiation in a world where everything, with no exceptions, is radioactive to a greater or lesser extent.

    The tobacco industry has weathered much valid health hazard criticism, with one detail conspicuous only in its absence: Polonium 210. Tobacco roots seek out this isotope–having nuclear properties similar to Strontium 90–and concentrate it in the leaves. Yet even the shrillest of the tobacco regulators somehow manage never to mention this item. Vaping could clearly supply THC and other enjoyables without dangerous combustion products or Polonium. So why lie?

    1. Today I learned most Americans are Polonium deficient. We must close the isotope gap!

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  6. FDA needs to eat a bag of dicks.

  7. The Ministry of Truth has to get it’s cut of the profits on Truth.

    1. Without clicking through, would they be:

      “Warty called, and your appointment has been moved up.”?

  8. As a kid, some dipshit sixth grade teacher yelled at me and threw me out of class after she brought up anti-tobacco advertising laws, and I pointed out how that sounded unconstitutional. She said but they were marketing to children with cartoons and everything. It was when I pointed out the inanity of that distinction that the middle aged and overweight (her ‘dieting’ consisted of eating those nasty rice wafers smeared in peanut butter in the middle of class) spinster lost her shit.

    I wonder if Nick was there championing the government at the time, useful idiot that he is.

  9. Statists gonna state

  10. RE: Why Vape? E-Cig Companies Are Not Allowed to Say.
    The FDA is suppressing potentially lifesaving information about the health advantages of e-cigarettes.

    Well of course an needless nanny bureaucracy here in Amerika is suppressing potentially life saving information regarding e-cigs.
    Isn’t that why we’re all giving the FDA our hard earned tax dollars, to suppress free speech?
    Of course it is.

  11. I like the censoring where the vaporizer is replaced by dildos. Simple, tasteless, elegant. EFFECTIVE.

    1. But all the dildos are in executive, legislative and judicial branch of our government.
      Isn’t that enough?

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  16. To get the FDA’s permission, an applicant must demonstrate that its product will not only “significantly reduce harm …” but also “benefit the health of the population as a whole, taking into account both users of tobacco products and persons who do not currently use tobacco products.”

    Consumers would save a mint if the FDA imposed this stricture on erstwhile ‘health foods’, ‘nutritional supplements’, and organic produce.

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  26. “FDA is taking this action to reduce the death and disease from tobacco products. What are tobacco products? Whatever the hell we say they are, and we’ll wreck your business if you say otherwise, got it?”

  27. @ Why Vape? E-Cig Companies Are Not Allowed to Say.
    I also read E-Cig regulations fda here http://www.ecigunit.com/web_ec…..ations.htm
    I think we should think more for it

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