Over 50 cannabis and vaping authors and contributors
January 30, 2022
4 min to read

Biden's FDA Nominee Faces Confirmation Trouble

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Jim McDonald
Robert Califf’s nomination to lead the FDA could be in serious trouble. Sources in Congress have told Politico that the former FDA commissioner doesn’t currently have the votes to be confirmed by the Senate a second time.

Califf, who previously served as FDA commissioner during President Barack Obama’s last year in office, entered the current nomination process with significant existing Democratic opposition. Five Democratic senators—Bernie Sanders, Maggie Hassan, Joe Manchin, Richard Blumenthal, and Edward Markey—have indicated they will vote against the nominee, based mostly on disputes over the FDA’s handling of the opioid crisis and Califf’s connections to the drug industry.

Two weeks ago, Califf cleared a vote on the Senate Health, Education, Labor and Pensions (HELP) Committee by a 13-8 margin, as six Republicans joined Democrats Sanders and Hassan to vote against the nominee. The vote was closer than expected, with just four Republicans supporting Califf. But those four votes may be all the nominee can count on in the full Senate vote, according to a Republican lobbyist who spoke to Politico.

"Califf has previously supported an outright ban of flavored vaping products, and has even suggested a prescription-only model for e-cigarette sales."

Republican support crashed when the FDA eased restrictions in December on mailing abortion medication prescriptions obtained through telehealth appointments. Since then, pressure on Republican Senators from anti-abortion groups has turned the nomination from a likely bipartisan romp into a quagmire for the Biden administration.

The Senate opposition has nothing to do with FDA vaping regulation, but supporters of liberalizing vaping product standards are quietly cheering Califf’s nomination problems. Vaping advocates, who generally oppose Califf’s nomination, believe the former Duke University cardiology researcher would encourage the FDA Center for Tobacco Products (CTP) to lean toward harsh regulation of vaping products.

The agency is currently paralyzed by indecision over authorizing more e-cigarettes for market, and has been challenged in court by more than two dozen manufacturers whose Premarket Tobacco Applications (PMTAs) have received Marketing Denial Orders (MDOs). After more than a year reviewing applications, the CTP has authorized just one product: a primitive, tobacco-flavored e-cigarette. Most flavored products have received MDOs, using a standard that was sprung on manufacturers after the fact.

The next FDA commissioner will likely take an active role in guiding the CTP process, especially since the tobacco office will have a new director soon. Acting Commissioner Janet Woodcock has shown little interest in, or knowledge of, the tobacco end of the FDA's responsibilities. If the Califf nomination crumbles, Woodcock will also be forced to lead the choice of a new CTP director to replace Mitch Zeller, who has announced he will retire in April.

"Should Califf’s nomination fail, other staunch vaping opponents would likely get a second look by the administration."

Califf hasn’t commented on the current regulatory mess at the CTP, but noted during his Senate HELP Committee confirmation hearing that replacing Zeller with “the right person” would be one of the most important tasks for the next commissioner. Califf has previously supported an outright ban of flavored vaping products, and has even suggested a prescription-only model for e-cigarette sales.

In 2016, Califf was approved by the Senate 89-4, with just one Republican (New Hampshire’s Kelly Ayotte, who is no longer in the Senate) voting against him. This time, if five Democrats stand firm against him, it’s uncertain Califf will be able to muster even five Republican votes needed to offset the Democrats—which is why Senate Majority Leader Chuck Schumer has not scheduled a final vote yet. (If Califf gets 50 votes, Vice President Kamala Harris would break the tie in his favor.)

Acting Commissioner Janet Woodcock, who has held the temporary FDA job since January 2021, can continue running the agency as long as Califf’s nomination is pending, according to Endpoints News. If his nomination is rejected by the Senate or withdrawn by the White House, Woodcock is limited to an additional 210 days of service.

It is worth noting that some of the other names floated as likely FDA nominees after Biden’s election would likely be as bad for vapers and the vaping industry as Califf—or even worse. Should Califf’s nomination fail, other staunch vaping opponents would likely get a second look by the administration.

See our previous coverage of the Califf nomination:
Biden Could Pick Vaping Foe Robert Califf as FDA Chief (Oct. 15, 2021)
Biden Announces Nomination of Califf as FDA Commissioner (Nov. 12, 2021)
Califf Hearing Offers Few Clues to Future FDA Vape Regulation (Dec. 14, 2021)
FDA Nominee Califf Heads to Full Senate Vote, but Opposition Grows (Jan. 13, 2022)

Featured image courtesy C-SPAN.

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Jim McDonald

Vaping since: 12 years

Favorite products:

Favorite flavors: RY4-style tobaccos, fruits

Expertise in: Political and legal challenges, tobacco control haters, moral panics

Jim McDonald

Smokers created vaping without help from the tobacco industry or anti-smoking crusaders, and I believe vapers have the right to continue innovating to help themselves. My goal is to provide clear, honest information about the challenges vaping faces from lawmakers, regulators, and brokers of disinformation. I’m a member of the CASAA board, but my opinions aren’t necessarily CASAA’s, and vice versa. You can find me on Twitter @whycherrywhy

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