Vaping Regulation Threatens a Lifesaving Smoking Alternative

Policy makers are acting as if saving the lives of smokers via harm-reducing alternatives counts for nothing.


Electronic cigarettes, which deliver nicotine without tobacco or combustion, are the most important harm-reducing alternative to smoking ever developed, one that could prevent millions of premature deaths in the U.S. alone. Yet bureaucrats and politicians seem determined to negate that historic opportunity through regulations and taxes that threaten to cripple the industry.

In October, seven years after the Food and Drug Administration (FDA) officially declared its intention to regulate "electronic nicotine delivery systems" (ENDS), the agency finally approved one such product. But the FDA, which has rejected applications for millions of other vaping products, still seems inclined to ban the e-liquid flavors that former smokers overwhelmingly prefer. Why? Because teenagers also like them.

The FDA authorized the marketing of R.J. Reynolds Vapor Company's Vuse Solo device, along with two tobacco-flavored cartridges. It said the company had presented enough evidence to conclude that the products "could benefit addicted adult smokers" by "reducing their exposure to harmful chemicals." But at the same time, the FDA rejected 10 applications for Vuse Solo cartridges in other flavors.

According to survey data, three-quarters of adult vapers prefer flavors other than tobacco. But because those flavors also appeal to teenagers, the FDA says, they will be approved only if manufacturers present "robust," "reliable," and "product-specific" evidence that their benefits in helping smokers quit outweigh the risk that they will encourage underage vaping.

R.J. Reynolds, whose Vuse products account for nearly a third of the ENDS market, is a large company that had the resources to conduct the sort of expensive research demanded by the FDA. The fact that it was nevertheless unable to overcome the agency's bias against flavored ENDS did not bode well for other manufacturers or for consumers who value variety.

Under federal law, the FDA is supposed to decide whether approving a vaping product is "appropriate for the protection of public health," taking into account "the risks and benefits to the population as a whole." While that collectivist calculus is both morally dubious and highly subjective, it at least suggests that the FDA is expected to weigh the benefits of flavored e-liquids, measured in smoking-related death and disease these products could help prevent, against the costs of the underage vaping they might encourage. Instead, the FDA seems bent on rejecting any ENDS in flavors that are popular among teenagers, even when the main consumers are adults.

Survey data indicate that the vast majority of teenagers who vape regularly are current or former smokers. That means the FDA's fear that ENDS are causing an "epidemic" of adolescent nicotine addiction is overblown—especially since vaping by teenagers dropped substantially in 2019 and 2020, a development the agency prefers to ignore. There is even less reason to think vaping is a significant "gateway" to smoking among teenagers who otherwise never would have tried nicotine. If anything, recent trends suggest the availability of ENDS has accelerated the downward trend in adolescent smoking.

The folly of the obsession with preventing underage vaping was apparent in San Francisco, where a 2018 ban on flavored ENDS seems to have boosted smoking by teenagers and young adults. That cautionary example has not deterred other jurisdictions from considering the same counterproductive policy.

In case heavy-handed federal and local regulations are not enough to stop smokers from quitting, House Democrats have proposed excise taxes that would double or triple the retail price of e-liquids. "This tax will not only kill my business," a Georgia vape shop owner told Reason's Christian Britschgi. "It will kill Americans."

In an August American Journal of Public Health article, 15 prominent tobacco researchers warned that "policies intended to reduce adolescent vaping," including flavor bans, "may also reduce adult smokers' use of e-cigarettes in quit attempts." They emphasized that "the potential lifesaving benefits of e-cigarettes for adult smokers deserve attention equal to the risks to youths."

That article summarized "a growing body of evidence" that "vaping can foster smoking cessation." Yet Rep. Raja Krishnamoorthi (D–Ill.), who wrote a bill he called the END ENDS Act, insists "there's simply no evidence that vapes help [smokers] quit." He also claims to believe "adults can do what they want," which is likewise demonstrably false given the severe restrictions he favors.

Although the FDA acknowledges the harm-reducing potential of ENDS, in practice it is giving that benefit short shrift. Other policy makers, meanwhile, are proceeding as if the lives of smokers count for nothing.

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  1. Fuck these assholes. I haven't had a cig in 3 yrs because of vapes. But my life is worth less than their puritanical crusade against nicotine. Assholes.

    1. If it were a crusade against nicotine, they'd be supporting vaping. The fact that they are against vaping, while knowing it increases cigarette smoking, is all the proof you need that this is big tobacco buying congress critters. Simple old-fashioned corruption.

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  2. [In an August American Journal of Public Health article, 15 prominent tobacco researchers warned that "policies intended to reduce adolescent vaping," including flavor bans, "may also reduce adult smokers' use of e-cigarettes in quit attempts." They emphasized that "the potential lifesaving benefits of e-cigarettes for adult smokers deserve attention equal to the risks to youths."]

    Unfortunately for tobacco harm reduction and public health, those same 15 prominent tobacco researchers (and hundreds more) received lots of funding from the NIH and RWJF (family foundation of J&J, which has monopolies to market Nicorette and Nicoderm in 120+ countries) to advocate (i.e. lobby) for Congressional enactment of the 2009 Family Smoking Prevention and Tobacco Control Act (which grandfathered/protected thousands of cigarette brands from FDA regulation), and FDA's Deeming Rule (that has banned >99.99% of nicotine vapor products), which the agency recruited former GlaxoSmithKline lobbyist Mitch Zeller to formally propose in 2014 and to impose in 2016.

    Except for Philip Morris, virtually all of the so-called health and medical groups that lobbied Congress to enact the cigarette protecting 2009 FSPTCA (e.g. CTFK, ACS, ALA, AHA, AAP, AMA and dozens of other medical, nursing and pulbic health groups) were financed to do so by J&J/RWJF, GSK, Pfizer (maker of Chantix), and hundreds of NIH grants (whose leadership strongly supported the FSPTCA).

    In 2014, those same groups, along with Legacy (the multi billion dollar foundation established by the 1998 Master Settlement Agreement), all of the world's largest cigarette companies and several of the largest vape companies ALL urged the FDA to impose the Deeming Rule (to benefit themselves by banning >99% of smaller vapor product competitors).

    In sum, Big Pharma, Big Tobacco and Big Government all colluded to further protect cigarettes (which still kill 450,000 Americans annually) from market competition (by vapes that are 99% less harmful) by proposing and then imposing an FDA regulation that has banned >99.99% if vapor products and companies, while creating a vapor monopoly for one company so far (RJ Reynolds, whose profit margins are still higher for their cigarettes than their vapes).

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