Posts Tagged ‘tobacco’

October 23 roundup

October 16 roundup

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]

December 12 roundup

  • “Scott Gottlieb’s FDA Is Moving Toward a Stealth Ban on Cigarettes and Cigars” [Jacob Grier, Reason]
  • Supreme Court should take Melissa and Aaron Klein cake-refusal case from Oregon and resolve the issues of free expression it dodged in Masterpiece [Ilya Shapiro and Patrick Moran, ABA Journal, earlier on Melissa and Aaron Klein cake-refusal case including oppressive $135,000 fine levied by Oregon BOLI (Bureau of Labor and Industries)]
  • “Administrative Law Is Bunk. We Need a Bundesverwaltungsgericht” [Michael Greve, responses from Mike Rappaport, Philip Wallach, and Ilan Wurman, and rejoinder from Greve]
  • New York’s family court system is failing children and their families [Naomi Riley/City Journal, thanks for quote]
  • “The Emmys People Are Opposing A Pet Products Company Named After A Dog Named ‘Emmy'” [Tim Geigner, TechDirt]
  • Metaphor alert: “Lawmaker Injured by Flying Constitution” [Kevin Underhill, Lowering the Bar, and funny throughout]

Banking and finance roundup

Medical roundup

  • Outcry among British doctors after trainee pediatrician convicted of negligent homicide in death of patient following systemic errors at understaffed hospital [Telegraph, Saurabh Jha, Medscape, General Medical Council]
  • “There’s no particular reason to think that smokers will be happier with denatured tobacco than drinkers have been with weak beer.” [J.D. Tuccille on FDA plans to reduce nicotine level in cigarettes]
  • “Why Doesn’t the Surgeon General Seek FDA Reclassification of Naloxone to OTC?” [Jeffrey Singer, Cato]
  • “1 in 3 physicians has been sued; by age 55, 1 in 2 hit with suit” [Kevin B. O’Reilly, AMA Wire] “Best and worst states for doctors” [John S Kiernan, WalletHub]
  • “Soon came a ‘routine’ urine drug test, ostensibly to ensure she didn’t abuse the powerful drug. A year later, she got the bill for that test. It was $17,850.” [Beth Mole, ArsTechnica]
  • Milkshakes could be next as sugar-tax Tories in Britain pursue the logic of joylessness [Andrew Stuttaford, National Review]

Medical roundup

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.

Medical roundup