Beware of false prophets
Five years ago, the vaping advocacy world was a lot simpler. CASAA was there, of course; they’ve been around since 2009, representing consumers without much fanfare — and, sadly, very little money. As far as industry, the only real game in town was NJOY, whose government affairs pros Pamela Gorman and Brian Fojtik ranged across the country, tamping down threats and training lobbyists. They helped a lot of beginning vape advocates get started too.
There were vapers who made it their business to spread the word, raise awareness about legislation, and get people working together. Some of them were “vape famous” figures like YouTube reviewer Dimitris Agrafiotis — who later formed the Tennessee Smoke-Free Association and SEVIA USA. But most were just regular vapers who felt an obligation to help save this thing that had helped them so much. A lot of those people helped form the state associations that became the early backbone of the vape advocacy community.
What didn’t exist five years ago was a confusing cornucopia of professionals, amateurs, well-meaning sympathizers, and possible charlatans. It was the deeming rule and its cousins in the state legislatures that made the world of vaping a popular destination for carpetbaggers and con men. On May 5, 2016, the American vaping universe exploded with fear and uncertainty.
Nowadays, it’s hard sometimes to be sure who’s on our side, who’s a serious player, and who’s just in it for money or power or fame. It seems like there’s a new “miracle cure” promising a fix for vaping’s ills every month. How many more unknown saviors are waiting in the wings to push a previously unheard-of strategy to a group of people desperate for a solution. There’s a lot of “junk advocacy” out there, a lot of legal gimmicks.
Who do you trust?
We’re being asked to support ideas that are longshots at best, and damaging at worst. You’ve probably heard about the village of Hartland, WI, and its effort to challenge the deeming regulations based on the legal strategy of “coordination.”
The theory goes that the regs are invalid because the FDA didn’t consult with local governments when writing them. True, they didn’t. They also never have before, and they never will in the future, because it would be impossible to coordinate with every municipality in the country that has a local business impacted by a federal regulation. Besides, Hartland had plenty of opportunity during the public comment period to state its case, and it didn’t. This tactic isn’t the village’s idea.
Don’t get me wrong — the village itself is welcome to do as it pleases, and good luck to them. In fact, as farfetched as the strategy is, it can’t hurt to have more challengers pile onto the FDA. The more uncomfortable those smug regulators feel, the better. Hey, I say let 100 anti-FDA flowers bloom!
The problem isn’t Hartland. It’s the self-described “seasoned political consultant” who heads a “powerful organization” (that few people have heard of) who wants to “use his political skills” to save the vaping industry. In fact, he’s going to “stop the clock on current regulations within 60 days”…if he can get vapers to pony up $200,000.
This guy is a longtime Wisconsin politico whose last splash was as Herman Cain’s 2008 presidential campaign manager. And the strategy is the brainchild of a “seasoned lawyer and expert on the legal process of Coordination.”
But while the politico’s group was busy crowdfunding from vapers, the attorney’s license to practice law in Maryland was being suspended (for unrelated reasons). I think they see vapers as easy to manipulate to serve their purposes. The joke’s on them though: the Indiegogo campaign has only recieved around $7,000 in pledges of the $200,000 goal in two months.
Follow this simple rule of thumb: if someone asks you for money to support something that sounds too good to be true, walk away. You already know the people you should trust in this space. Don’t fall for novelties. If you have money to spend helping vape survive and prosper, send it to the people who’ve been fighting for vapers all along. Consumers, join CASAA and contribute. Vendors, join your state association and one of the national ones — SFATA or the VTA — and support the AVA too.
Why should we bother to fight over and over again?
We need to support the advocacy groups that have been fighting for us since day one. And we need to stay focused on the fights that have already begun, and not lose interest. Why is it important that vapers make the effort to take action when we have the chance? Because our opponents always do. When vapers appear apathetic, it’s easy for politicians to throw their support to the better-known forces of prohibition.
When we don’t fight, it magnifies the efforts of people like Matthew Myers and Stanton Glantz. And if those of us who care about vaping get too tired or bored or jaded to make the effort…well, no one else is going to do it for us. Our enemies will not get tired or bored.
Two weeks ago, a letter to DHHS Secretary Price, signed by 51 so-called health groups, urged the secretary to “defend and fully implement” the deeming rule. The letter was organized by Matthew Myers of the Campaign for Tobacco-Free Kids, a tireless hater of anything less than total prohibition of all nicotine products.
According to a CTFK press release, the groups object to the recent FDA delay of future deeming deadlines, which the agency said would “allow new leadership at the FDA and the Department of Health and Human Services additional time to more fully consider issues raised by the final rule that are now the subject of multiple lawsuits in federal court.”
The letter will be followed by a rolling offensive of newspaper op-eds and letters to the editor by allies of these groups. That’s how they always work. These opponents of tobacco harm reduction are organized. They’re not in this for love or gratitude. Thousands of jobs and billions in funding for the wellness/prevention/public health/tobacco control industrial complex depend on maintaining the tobacco industry as a hated bogeyman, and they’re not planning to let little independent vape take away their comfortable livelihoods any time soon.
Our opponents have wealth, power, political connections, and the support of most people — because most people simply don’t understand the debate. All vapers have is the truth, and the energy of people whose lives have been improved or maybe even saved by vaping. When we have a chance to push back against the rock they’re trying to roll on top of us, we need to push hard.
What SHOULD have our attention right now?
There are a variety of current initiatives aimed at disabling or killing the deeming regulations. They may not have the sexiness of a miracle cure, but they are sensible responses to the federal plan to move the independent vaping industry back into bathtubs and garages.
Cole-Bishop: HR 1136 and the 2018 budget battle
HR 1136, the FDA Deeming Authority Clarification Act is up to 70 co-sponsors in the House of Representatives, including nine Democrats. The bipartisan bill, authored by Republican Tom Cole of Oklahoma and Democrat Sanford Bishop of Georgia, should be our primary focus in Congress for now.
Once the deeming predicate date is changed, and current vape products can remain on the market past November 2018 without spending millions filing PMTA’s, then we can start thinking about a major overhaul of existing law.
If we could convince every vaper in the country to visit August8th.org today and spend one minute asking members of Congress to support HR 1136, this would probably all be over in a few weeks. There are more than 10 million Americans regularly using vapor products. If every one of them spent a minute asking their members of Congress to take action, we couldn’t be ignored. In fact, we’d be one of the most powerful special interests in Washington.
But we can’t seem to find, educate, and motivate enough of those 10 million vapers. So our strategy goes like this: we amass a lot of support among House members, and use it to get the language from HR 1136 — the change of the deeming predicate date that is set to destroy the U.S. vaping industry — inserted into the 2018 budget bill that will be passed this fall.
Getting the Cole-Bishop predicate date change into the next budget bill should be the primary legislative goal of every vaper and vape business in the country right now. Frankly, anyone who says different is just wrong.
The Hunter bill: HR 2194
Yes, there is a “better” bill, the Duncan Hunter-sponsored HR 2194. But that effort is so ambitious that no one believes it can go anywhere in Congress this year, and probably even next year.
There’s nothing wrong with supporting the Hunter legislation. Everyone wants to rewrite the Tobacco Control Act and remove vape from that legislation, but it’s such a complicated task, and it may venture into the carefully guarded spaces of too many powerful interests to succeed anytime soon. Rather, the Hunter bill is a good starting point for a solution that’s probably a long way off.
Rewriting the Tobacco Control Act will be a battle royale, with a bunch of vapers and the tiny vapor industry taking on Big Tobacco, Big Pharma, all the anti-nicotine groups, and the Democrats that passed the Act to begin with.
Before we sink hip deep into that swamp, let’s do our best to save the vape shops and e-liquid manufacturers first. If the predicate date isn’t changed soon, vape shops will begin closing by the thousands.
The NJOY Citizen Petition
It may sound iffy, but the Citizen Petition is legit. Aside from filer NJOY, the petition is supported by the VTA, SFATA, Nicopure, Five Pawns, Johnson Creek, and several other vaping organizations and companies. CASAA has issued a call to action too, asking vapers to join the effort.
The petition asks new FDA Commissioner Scott Gottlieb to delay the deeming regulations deadlines by 24 months, and issue “final guidance or regulations describing the recommended or required contents of premarket submissions” for vapor product marketing orders.
A Citizen Petition lets members of the public, or businesses like NJOY. to ask the FDA to “issue, amend, or revoke a regulation or order,” or “take or refrain from taking any other form of administrative action.” By law, the FDA must respond within 150 days.
This petition isn’t like the unofficial — and usually pointless — ones we often see online. It’s a serious process, specifically listed in the U.S. Code of Federal Regulations.
The federal courts
The federal lawsuits like the Nicopure/Right To Be Smoke-Free Coalition effort are serious too. Even if the Judge Amy Jackson Berman rules against the vapor industry plaintiffs, appeals could keep the deeming regulations tied up in court for a long time. The Department of Justice could even choose not to defend the cases, or pursue appeals if the FDA loses.
The agency recently postponed all future deeming deadlines, saying, ““This extension will allow new leadership at the FDA and the Department of Health and Human Services additional time to more fully consider issues raised by the final rule that are now the subject of multiple lawsuits in federal court.”
It may be that Congress and the new administration will let us down. If so, supporting the Nicopure/R2BSF legal effort would be our last hope.
We’re just getting started
Vapers know the deeming regulations will destroy the vapor industry and the products we love. People are afraid, and that they should be. But it is not time to give up. All credible advocates and vaping groups have made changing the deeming predicate date their primary focus, and every vaper should as well.
For the first time in the history of all this struggle, we are starting to see traditionally cautious public health experts come around to understand how damaging it will be if the independent vaping industry is destroyed. This will be key in gaining support from both Republicans and Democrats, which we need to find a solution that gives vaping long-term peace of mind. There is a lot to do. And a lot of uncertainty. No one should feel comfortable right now, and we all need to act. We need to stay strong, stay committed, and do this together.