Senate Confirms Xavier Becerra as HHS Secretary

President Biden’s choice to lead the Department of Health and Human Services (HHS) clinched Senate approval today by a single vote, 50-49. Becerra, the current state attorney general of California, received just one Republican vote, and no Democrats voted against him.

As HHS secretary, Becerra will oversee three agencies whose actions impact vaping: the Food and Drug Administration (FDA), Centers for Disease Control and Prevention (CDC), and the National Institutes of Health (NIH). Also under Becerra’s purview is the massive Centers for Medicare and Medicaid Services (CMS), which manages most of the country’s public healthcare programs. The HHS has a $1 trillion annual budget, the largest of any cabinet department.

As we reported in December, Becerra was something of an odd choice for HHS secretary. Before his stint as California’s AG, Becerra was a 12-term member of the House. With no background or expertise in healthcare policy, and a history of tough partisan politics, the Biden transition team was aware in advance that Senate approval for Becerra would be a challenge. (In fact, he wouldn’t have been confirmed if Republicans had won one of the two January runoff elections in Georgia and maintained their majority.)

During his time as California’s attorney general, Becerra was generally antagonistic to vaping, although not more than most Democratic politicians from that state. He supported a federal flavor ban, and said he would support an outright ban of online sales. Last year, he filed a brief in support of the California Assembly’s flavored tobacco product ban (including vapes) when that law was challenged by tobacco companies. (Attorneys general are expected to defend all state laws against challenges.)

In 2019, Becerra filed a lawsuit charging Juul Labs marketed and sold its products to minors—something several other states have also done. He also created a program that gave millions in grants to local schools and law enforcement to “educate” kids about vaping, which he said was popular because of misinformation propagated by “big tobacco companies.” However, Becerra also backed then-FDA Commissioner Scott Gottlieb’s 2017 plan to reduce nicotine in cigarettes, which was not exactly an anti-vaping position.

Many Washington observers expected Biden to choose New Mexico Governor Michelle Lujan Grisham, an acknowledged healthcare expert, and a popular choice with Hispanic Democrats (Becerra is also Hispanic). Lujan-Grisham would have been the best choice for vaping defenders too, having supported and signed a reasonable vaping bill in New Mexico that did not include a flavor ban.

While it’s impossible to predict with certainty, Becerra is probably unlikely to micromanage the FDA’s vaping regulation. In the near term, Becerra will be faced with coordinating the various HHS agencies’ response to the coronavirus crisis. That could happen, however, when Biden selects a permanent FDA commissioner. Biden filled that job with FDA veteran Janet Woodcock on an interim basis, but the President is thought to be considering ex-FDA deputy Josh Sharfstein—a staunch opponent of vaping—for the job.

Becerra succeeds Alex Azar, Donald Trump’s HHS secretary. Azar first pushed Trump to support a ban on flavored vaping products, then later promised a “streamlined” PMTA process that would allow small, independent vaping manufacturers a chance at approval—a promise that was not kept.