E-cigarette industry gains allies in regulation fight

WASHINGTON — The electronic cigarette industry and its free-market allies are seeing fresh opportunities to ease federal rules on e-cigarettes as Congress races to pass a government spending bill this week and President Trump fills key public-health posts in his administration.

More than a dozen conservative groups wrote to congressional leaders this week, calling on them to add a pro-vaping provision to a spending measure that must pass by midnight Friday to avert a government shutdown. If successful, the measure would be the latest sign of the $4.4 billion vaping industry’s growing clout in Washington.

The provision favored by the industry was introduced by Reps. Tom Cole, R-Okla., and Sanford Bishop, D-Ga., and would exempt thousands of vaping products on the market from Food and Drug Administration approval.  A rule issued last year by the Obama administration “deems” e-cigarettes to be tobacco products and allows the FDA to retroactively examine all tobacco products on the market in February 2007.

The e-cigarette industry was virtually non-existent before then, and industry advocates say the costly FDA approval process would force most e-cigarette companies to shut down.

Some public-health advocates counter that the agency’s review under the so-called “deeming rule” would allow regulators to guarantee the safety of electronic cigarettes and the nicotine-infused liquid they use in their products. Representatives from 51 groups, including the American Lung Association and the Campaign for Tobacco-Free Kids, have asked congressional appropriators to retain the FDA rule.

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The potential for the Cole-Bishop provision to become law comes as Trump himself moves to slash Obama-era regulations and the Senate weighs his pick to run the FDA, Scott Gottlieb.

Gottlieb, a physician and former FDA official, served on the board of an e-cigarette retailer. He also has a financial stake in the company and has pledged to sell off that holding if confirmed by the Senate. During a recent confirmation hearing, Gottlieb said “reduced harm products,” such as e-cigarettes, should be available “to consumers to transition them off combustible cigarettes.”

The Senate Health, Education, Labor and Pensions Committee is scheduled to vote Thursday on Gottlieb's nomination.

Keith Nelson of the Tobacco Vapor Electronic Cigarette Association said he “is greatly encouraged” by Trump’s moves to reduce regulations across the government and supports Gottlieb’s approach to vaping regulation.

“We want this to be dominated by reason and sound science, not public-health hysteria,” he said.

Grover Norquist, the head of the conservative Americans for Tax Reform, has become a vocal advocate for e-cigarette producers and consumers and this week praised Gottlieb as "somebody who won’t try to kill vaping, who actually cares about health."

Norquist also voiced approval of another recent personnel decision by Trump: the president’s ouster last week of Surgeon General Vivek Murthy, an Obama holdover.  Late last year, Murthy issued a report calling e-cigarette use among young people “a major public health concern.”

Norquist helped organize a petition drive calling for Murthy’s firing and called his removal a “delightful thing" in an interview with USA TODAY.

Norquist said he didn’t know whether his lobbying played a role in Murthy’s departure. “It’s possible,” he said.

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Murthy also called gun violence a public health threat, and his nomination by Obama had drawn opposition from the powerful National Rifle Association.

Trump administration officials have not disclosed why they asked Murthy to leave before his term expired, and White House officials did not respond to a request for comment Wednesday.

Murthy did not respond to several interview requests.

Lobbying force

The Obama administration’s sweeping 2016 rule giving the FDA authority to regulate e-cigarettes has sparked an intense lobbying fight as an army of high-profile lobbyists from both parties work on the industry’s behalf to roll back the provisions. The companies also are fighting the rule in court.

Key players include traditional tobacco companies, which also have joined the e-cigarette business.

Tobacco giant R.J. Reynolds, for instance, produces e-cigarettes under the brand VUSE, which now represents 35% of the electronic cigarettes sold in convenience stores and gas stations.

A recently filed fundraising report by Trump’s inaugural committee shows the tobacco company’s parent firm donated $1 million to help underwrite the festivities. Altria, the nation’s largest tobacco company, donated $500,000.

Reynolds American spokesman David Howard says the company was “pleased to be one of the many organizations to be part of the celebration.”

“We will continue our efforts to educate elected officials on matters that are important to our consumers, our shareholders and others stakeholders,” he said, “It is particularly important to do so with people new in government roles who may not have the background and information about the issues.”

The FDA regulations “in their current form are antiquated,” Howard added. “You can’t just pigeonhole a category that didn’t exist prior to 2007.”

Reducing harm?

Critics charge that e-cigarette’s use of candy-like flavors in the vaping liquid lure young people to vaping, which can then lead them to tobacco.

But some say the flavors have the opposite effect. They improve the likelihood that smokers will be attracted to vaping to help quit smoking, says Jeff Stier, a senior fellow and e-cigarette advocate with the free-market National Center for Public Policy Research.

If smokers try e-cigarettes, “it may lead to continued abstinence,” he said.

If people “actually enjoy them, it’s good for public health,” added Stier, who joined Norquist and other conservatives in asking congressional leaders to add the Cole-Bishop language to the spending bill.

E-cigarette use has climbed rapidly among young people, even as traditional smoking has declined.

Among high school students, e-cigarette use rose from 1.5% in 2011 to 16% in 2015, according to a report issued last year by the Centers for Disease Control and Prevention. And public health officials warned that nicotine is an addictive substance that could harm brain development.

Vince Willmore, a top spokesman for the Campaign for Tobacco-Free Kids, said there isn't enough evidence to demonstrate that vaping helps consumers drop traditional smoking habits.

"FDA regulation is needed both to prevent kids from using these products and to create an incentive for manufacturers to develop the evidence that they can actually help smokers give up regular cigarettes," he said.

The notion of “harm reduction” is the main argument pro-vaping forces use in their push to remove the requirement that tobacco companies retroactively prove their e-cigarettes are safe.

James Xu, CEO of the Richmond, Va.- based Avail Vapor, says he got into the vaping business after he saw how it helped his wife quit smoking. He now owns the largest chain of vape stores in the country and makes 130 different flavors of the e-liquid used in the devices sold in vape stores. If the deeming rule’s retroactive date is retained, it would cost his company between $7 million to $10 million and require it to eliminate all but about 20 of its most popular e-liquid flavors.

“The (FDA) approach actually does not fit for a fast changing industry,” Xu said. “They tried to use the traditional tobacco approach for a product that more mimics technology.”