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July 26, 2017

Special Interest Groups Want to Defend FDA War on Vaping

Six special interest groups have petitioned two federal courts to allow them to defend the FDA’s deeming regulations.

“The groups expressed concern that the Trump Administration may not adequately defend the rule (known as the ‘deeming rule’) or may seek to weaken or rescind it, putting the health of children and the public at risk,” the groups stated in a press release issued by the Campaign for Tobacco-Free Kids (CTFK).

In addition to CTFK, the petitioners are the American Academy of Pediatrics, the American Cancer Society Cancer Action Network, the American Heart Association, the American Lung Association, and the Truth Initiative. So…CTFK, AAP, ACSCAN, AHA, ALA, and TI.

“Twice in recent months, the Department of Justice (DOJ) has delayed filing legal briefs defending the FDA rule in these two cases, Cigar Association of America v. FDA and Cyclops Vapor 2, LLC v. FDA,” reads the press release. “On May 1, the DOJ filed joint papers in court with the cigar and e-cigarette industry plaintiffs requesting that all deadlines in the cases be extended three months so that ‘new leadership personnel at the Department of Health and Human Services’ can ‘more fully consider the Rule and the issues raised in this case and determine how to proceed.’ In addition, the FDA announced it was extending, for three months, all compliance deadlines under the rule set for May 10, 2017, or later.”

In their press release, the pharma-backed groups contrasted the recent delay with the Obama DOJ’s actions, noting that the previous executive administration “strongly defended” the rule, leading to the recent decision in the Nicopure Labs/Right to be Smoke-Free Coalition lawsuit.

In that lawsuit, Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia found for the FDA, saying that the deeming rule is Constitutional. The vapor plaintiffs are considering the possibility of appealing the ruling.

Matt Myers to the rescue


The cases the “health groups” seek to intervene in are in the U.S. District Court for the Middle District of Alabama, and in the U.S. District Court for the District of Columbia. Although the Cigar Association case is in the same court as the Nicopure lawsuit, they are being decided by different judges.

Their heroic description of themselves in the Cyclops case is unintentionally hilarious. “Public Health Intervenors include six public health organizations dedicated to combatting [sic] the diseases and other adverse health effects caused by use of tobacco products, including ecigarettes,” they boast. “Each of the proposed intervenors expends substantial resources to educate the public about the risks of tobacco products, to help users quit smoking, and to advise the government on effective regulation of tobacco products.”

Now these nicotine warriors want to take over for the government and defend the FDA from the scary e-liquid makers.

The government needs their advice like it needs a hole in the head. This group is being led by Matthew Myers of CTFK, who actually negotiated the Tobacco Control Act with Philip Morris (now known as Altria). That’s the legislation that grandfathered every deadly cigarette into the marketplace and forces any new, low-risk product to go through a nightmarish and grossly expensive regulatory maze called a premarket tobacco application (PMTA) to even be considered.

Now these nicotine warriors want to take over for the government and defend the FDA from the scary e-liquid makers. For our own good, of course. Hopefully, the courts will let the FDA and DOJ fight their own battles, and avoid any further assistance from ever-helpful Myers and crew.

Smokers created vaping without any help from the tobacco industry or anti-smoking crusaders, and vapers have the right to keep 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 recently joined 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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