The FDA’s looming regulatory onslaught threatens the freedom to vape

This op-ed was originally published at Ricochet on November 25, 2015.

Americans who are trying to kick their nasty smoking habit have found healthier alternatives in e-cigarettes and vapor products that could, quite literally, save their lives. But the bureaucrats at the Food and Drug Administration are trying to put this $3.5 billion industry out of business.

Small mom-and-pop shops have sprung up across the country to meet the growing demand for vapor products, which allow users to refill their vaporizers with their favorite e-juices. Separately, big tobacco companies have invested in non-refillable e-cigarettes.

Though these products are not always tobacco-free; there’s no ash or smoke involved. But they do contain nicotine, which users can gradually reduce if they choose. E-cigarettes and vapor products contain far fewer chemicals and carcinogens than traditional tobacco cigarettes, making them safer for the users, as well as those around them. “[T]he levels of potentially problematic substances in e-cigarette aerosol,” Reason’s Jacob Sullum wrote in March, “are about the same as those detected in ambient air.”

Bureaucrats, who believe they know what’s best for Americans, are concerned the perceived dangers of this new trend and are poised to issue a rule that would require makers of these products to go through a costly regulatory process. Products on the market before February 2007 would be exempt from the rule, but any available after the “grandfathered” date would be subject to review.

Big tobacco companies that produce e-cigarettes would be able to absorb the regulatory costs, but producers of vapor products simply likely won’t be able to afford to comply. “[T]he FDA’s proposed regulations threaten to ban 99 percent-plus of vape products currently available on the market,” American Vaping Association President Gregory Conley said in June. One e-juice maker told the Wall Street Journal, “We call it vapocalypse.”

The concerns over safety appear to be misguided, though further study is needed. In August, Public Health England, a government agency in the United Kingdom, estimated that e-cigarettes are 95 percent less harmful than traditional tobacco cigarettes. The study also noted that these products “help most smokers to quit tobacco altogether.”

“E-cigarettes are not completely risk free but when compared to smoking, evidence shows they carry just a fraction of the harm. The problem is people increasingly think they are at least as harmful and this may be keeping millions of smokers from quitting,” said Professor Kevin Fenton, Director of Health and Wellbeing at Public Health England. “Local stop smoking services should look to support e-cigarette users in their journey to quitting completely.”

Some politicians and public health advocates have expressed worry that e-cigarette and vapors products are being used by young people as a gateway to smoking due to the prevalence of candy-flavored products on the market. This, too, seems to be unfounded, especially since the number of Americans who smoke has plummeted to a record low. According to the Centers for Disease Control, even teen smoking has dropped to its lowest point in 22 years. The FDA’s own survey data show smoking among teens has declined by over 40 percent since 2011 to a new record low.

A 2013 University of Oklahoma Health Science Center survey of 1,300 college students found that 43 of respondents, or 3.3 percent, said e-cigarettes were their introduction to nicotine. Only one student began smoking after trying e-cigarettes.

“It didn’t seem as though it really proved to be a gateway to anything,” a researcher said of the results of the survey.

Thankfully, legislation has been introduced that would keep e-cigarettes and vapor products already on the market from going through an extensive and costly regulatory process. The language was attached to the agriculture appropriations bill, despite Democrats’ attempts to remove it. Though the bill never made it to the floor of Congress for a vote, it’s possible that it could be included in the upcoming omnibus spending bill.

We’re not simply talking about government encroachment and regulation of an industry growing in popularity; we’re also talking about potentially saving people’s lives. Unfortunately, as the American Vaping Association says, the message from the Obama administration to smokers is “quit or die.”