Search Results for ‘vaping’

After outbreak of bootleg-vape injuries, government restricts aboveboard vaping products

1) Batches of black-market vaping products, mostly containing THC rather than nicotine and used to get high, turn out to contain adulterants, most likely Vitamin E acetate, known to be harmful when inhaled. Over a period of weeks, hundreds of users fall seriously ill and several die in a classic “bad batch” episode familiar to epidemiologists and those who study the Drug War. [Erin Schumaker, ABC News]

2) Government reacts by banning a range of lawful nicotine vaping products sold in stores, none of which have been implicated in the deaths or injuries.

3) Predictable result: to drive some nicotine vape users back to cigarette smoking, and others toward sources of black-market supply. Good job, government! What problem would you like to fix next?

[Kimberly Leonard and Cassidy Morrison, Washington Examiner; Federalist Society Regulatory Transparency Project video featuring Sally Satel; Slate podcast with Jacob Grier; Jeffrey Singer, New York Daily News]

More: “Might restricting e-cigarette flavors actually increase smoking? (And acculturate vapers to tobacco flavors?) There’s actually some research on that” [Jonathan Adler on Twitter] Plus: trial lawyers circle vaping industry [Brendan Pierson, Reuters]

PLF files legal challenge to FDA vaping rules

As I noted in this space a year and a half ago, the Food and Drug Administration’s restrictions on vaping (e-cigarette) products — which questionably apply the Tobacco Control Act to products that contain no tobacco — “will drastically restrict and maybe even ban a popular option for smokers seeking to quit the cigarette habit. It’s not just an assault on individual choice and commercial freedom — it could wind up killing people.” Along the way, the agency would dent consumer choice in the cigar market.

Now the Pacific Legal Foundation has filed a challenge to the FDA rules, with separate legal actions in three courts. PLF’s central objection is that the regulation was issued by a career FDA civil servant without proper legal authority to do so. Ilya Shapiro, Washington Examiner:

It turns out that the FDA has for many years been delegating its rulemaking authority to its “associate commissioner for policy,” a career civil-service position two rungs below FDA Commissioner in the bureaucratic depth chart. For eight years, the Associate Commissioner for Policy has been a woman by the name of Leslie Kux. It was Kux, not then-Secretary Sylvia Burwell or then-Commissioner Robert Califf, who signed and issued the Deeming Rule.

Why is this a problem? Because the Constitution draws a distinction between “Officers of the United States” and mere employees of the federal government. Only officers can exercise “significant authority” under federal law. But in exchange for that greater power, officers must go through a constitutionally prescribed procedure, typically nomination by the president and confirmation by the Senate (with a few exceptions applicable only to inferior officers). This ensures that anyone appointed to a policymaking role — one whose duties go beyond the ministerial and advisory — will first have their character and judgment vetted by the politically accountable Senate (who shares in the blame when an appointment goes wrong).

The power to issue a final rule is indisputably a “significant authority” reserved only to officers.

While FDA commissioners have purported to delegate rule issuance authority to the permanent employee, PLF argues that the Constitution does not permit them to evade its prescription by such means.

Beyond that, the rules’ restrictions on marketing — which forbid companies to promote vaping as a method of harm reduction that could benefit existing smokers, even if that statement is plainly true — run into the First Amendment and the protections it affords to much truthful commercial speech. PLF:

The vaping edict flouts the First Amendment by forcing businesses to run a daunting regulatory gauntlet in order to advertise truthful information. The government can’t require pre-approval for truthful speech, and it especially can’t shift the burden of proof to the speaker to prove the benefits of his speech will outweigh any harms the government perceives may result.

Beyond violating the Constitution, the vaping rule is horrible public policy: it threatens to shut down thousands of small businesses that provide potentially life-saving products and creates a public safety hazard by making it very difficult to improve and repair products.

The FDA’s war on vaping

I’ve got a new piece at Ricochet on the Food and Drug Administration’s just-announced measures against vaping (e-cigarettes), which will drastically restrict and maybe even ban a popular option for smokers seeking to quit the cigarette habit. It’s not just an assault on individual choice and commercial freedom — it could wind up killing people. Read it here.

Relatedly, Andrew Stuttaford thinks I am too kind in describing CDC director Thomas Frieden as in denial about the prospective health benefits when smokers switch to vaping. And thank you to Andrew for describing Overlawyered as “must-read”.

P.S. Faced with two options on how to regulate premium cigars, FDA chose the harsher, of course [HalfWheel, Jacob Grier (“The market for cigars is about to become a lot less diverse and a lot more boring.”)]

More: I’ve got a piece up at Cato now on winners and losers from the FDA’s move. Plus, a new Jacob Sullum column: “The FDA’s deadly e-cigarette regulations.” And a Washington Post editorial defends the agency’s action on a for-the-children rationale, yet says not a word about the precipitous plunge in youth smoking rates and only refers in passing to the issue of harm reduction.

CDC’s Frieden in denial about good news on vaping

Actual cigarette smoking among teens, the kind that requires inhaling carcinogenic products of combustion, is down a startling 25 percent in one year and nearly 42 percent since 2011. The reason is the rapid substitution of vaping or e-cigarettes, which hold singular promise as a harm-reduction measure for those drawn to the nicotine habit. Great news, right? Not if you listen to Thomas Frieden of the Centers for Disease Control, who’s doing his best to disguise good tidings as bad so as to stoke the officially encouraged panic about vaping. New York Times columnist Joe Nocera nails Frieden on the issue [h/t @jackshafer], providing a model of appropriately skeptical press scrutiny of someone who hardly ever gets subjected to that. More on Frieden; David Henderson on how FDA hostility to vaping could slow the shift from more-toxic alternatives; related, Greg Gutfeld on California ads trashing e-cigs.

P.S. Andrew Stuttaford thinks Frieden’s not in denial, he knows better.

“NYC Council Bans Public Vaping…”

“…Because It Looks Too Much Like Smoking.” The invention and rapid spread in popularity of e-cigarettes might be seen as a sort of lab experiment to test the proposition: when you banned smoking, were you mostly concerned about the spillover effects on third parties or mostly being paternalistic toward tobacco users? [Jacob Sullum, Reason]

January 10 roundup

Medical roundup

August 1 roundup

  • Truly good news for both individual liberty and harm reduction: FDA grants reprieve for now to e-cigarettes/vaping [New York Times, Jacob Sullum/Reason, related; earlier on vaping, tobacco harm reduction, and the FDA here, here, and generally. Update: I’ve got a longer treatment up now at Cato;
  • HUD seems finally to be backing off its long dispute with Westchester County, N.Y., long chronicled in this space and elsewhere [Howard Husock, City Journal]
  • “Which side of the case is the federal government coming in on?” “Both, Your Honor.” [Rob Rosborough on DoJ’s intervention on opposite side from EEOC on question of whether Title VII covers sexual orientation, earlier on which here, etc.; Tony Mauro on DoJ split from NLRB on arbitration in Murphy Oil case; Thaya Brook Knight in March on constitutionality of CFPB] See also Marty Lederman, SCOTUSBlog, 2014;
  • “Michigan Juror Rights Pamphleteer Free From Jail Pending His Appeal” [Jacob Sullum]
  • Many satirical limericks later, Olive Garden’s parent company says its nastygram to a blogger “was auto-generated, and the company will take no further action.” [Charlotte Allen, Weekly Standard; earlier]
  • There’s a delivery out front: “Florida man who drove dead body to lawyer’s office won’t be charged” [AP/ClickOrlando]

Medical roundup

  • “Apple Watch can detect an early sign of heart disease…. Apple has been communicating privately with the FDA for years about medical devices and so far the FDA has taken a light touch to Apple but these issues are coming to a head.” [Tyler Cowen]
  • “[Investor] lawsuits targeting life sciences firms jumped 70 percent from 2014, according to a survey provided earlier this year by Dechert.” [Amanda Bronstad, New York Law Journal]
  • Iowa Gov. Terry Branstad signs medical malpractice reforms into law [Brianne Pfannenstiel, Des Moines Register]
  • Summing up what is known re: talc and ovarian cancer as background to jury’s $105 million verdict against Johnson & Johnson [BBC (in story’s second half), earlier here, here, and here]
  • $5,300 for an MRI that would cost Medicaid $500? Personal attendants for crash victims, even the ones well enough to participate in mixed martial arts? All part of Michigan no-fault crash system [Detroit Free Press investigative series, see yesterday’s post]
  • Dear D.C.: ditch the FDA deeming regs and let vaping save smokers’ lives [Jeff Stier/Henry Miller, NRO, Tony Abboud/The Hill (vaping trade association), Juliet Eilperin/Washington Post (FDA temporarily suspends enforcement)]