Commentary

FDA Bans Vast Range of Life-Saving E-Cigarettes

By Hans Bader | September 13, 2021 | 11:38am EDT
Marine Le Pen, president of France's National Rally party, smokes an e-cigarette. (Photo credit: Horacio Villalobos - Corbis/Corbis via Getty Images)
Marine Le Pen, president of France's National Rally party, smokes an e-cigarette. (Photo credit: Horacio Villalobos - Corbis/Corbis via Getty Images)

The FDA has banned the e-cigarettes commonly sold on the market, by either rejecting them, or delaying their approval. It isn't enforcing the ban against the biggest brands yet, and it may eventually approve those brands for sale. The FDA's ban on a vast range of e-cigarettes will make it harder for many smokers to quit smoking, by depriving them of alternative ways of satisfying their craving for nicotine.

"It's a new day and every e-cigarette in the U.S. is now illegal to sell thanks to the FDA. Enforcement will lag and a few big brands are expected to be approved eventually, but there's no underselling what a terrible decision this is with 34 million Americans still smoking," says Jacob Grier, an expert on tobacco and nicotine products. The FDA has also rejected applications for most "vapor products" containing nicotine.

E-cigarettes save lives by weaning many smokers (like my wife) off of cigarettes. If retailers stop selling e-cigarettes, that will cost many lives, because e-cigarettes are a substitute for cigarettes, which cause cancer. Curbing the sale of e-cigarettes will also enrich the powerful trial lawyers who bankroll Democratic politicians. That's because curbs on vaping increase cigarette consumption, and rising cigarette consumption increases payments to trial lawyers under the tobacco Master Settlement Agreement.

Politico reports that the "FDA has ordered more than 5 million e-cigarette products off the market, it said Thursday, in an announcement timed to a court-ordered deadline that will determine the future of the vaping industry." But it "surprised many observers by delaying its decision on the industry's largest players — Juul, Reynolds American's Vuse, and NJOY — after saying for months that its review process would give priority to firms by market share. The majority of companies that received market denial orders so far have been small and medium-sized companies."

“E-cigarettes could replace much or most of cigarette consumption in the U.S. in the next decade,” said William T. Godshall, Smokefree Pennsylvania's executive director. His group had campaigned in the past for smoke-free public vicinities, higher cigarette taxes, and cigarette pack graphic warnings.

“There is no evidence that e-cigarettes have ever harmed anyone, or that...nonsmokers have begun using the products,” Godshall said. Godshall rated e-cigarettes a 2 or lower on a scale of harm ranging 1 to 100, where lozenges and nicotine gums are 1 and cigarettes are 100.

When smokers switch from cigarettes to e-cigarettes, that reduces cancer deaths. But it also leaves greedy lawyers and state governments with less cigarette revenue.

In 1998, the big tobacco companies entered into the tobacco Master Settlement Agreement with state governments and the lawyers they hired to sue the tobacco companies. The states and some of their lawyers receive payments based on the number of cigarettes the tobacco companies sell. So every time a smoker quits, lawyers and states end up with less money. These lawyers are very powerful and influential, and have close political ties to progressive state attorneys general.

The American Bar Association Journal estimated the value of the tobacco settlement as $246 billion to the states, and $15 billion to the lawyers they hired. Economists like Stanford’s Jeremy Bulow say that virtually the entire cost of the settlement is paid for by America’s smokers, even though the lawsuits that led to the settlement claimed that smokers were the victims of fraudulent health claims by the biggest tobacco companies.

Restrictions on e-cigarettes drive people back to smoking cigarettes, which are more harmful to their health, notes Jacob Grier in Reason Magazine. "Research" suggests "a ban on flavored e-cigarettes in San Francisco...increased the use of combustible tobacco among teens." And "e-cigarette taxes likely push many kids to smoke (far more dangerous) cigarettes," says economist Scott Lincicome, citing a National Bureau of Economic Research paper. It noted that e-cigarette sales lead to "reduced cigarette use," while e-cigarette taxes "significantly increase cigarette use." That is worrisome, in light of "evidence suggesting smoking is substantially more dangerous than" vaping e-cigarettes.

As Grier points out, "the best available evidence suggests that vaping is far safer than smoking cigarettes, that it is more effective than nicotine patches or gums at helping smokers quit, and that the health benefits of encouraging smokers to switch outweigh the harms of vaping." Research shows that "widespread switching from smoking to vaping would prevent between 1.6 million and 6.6 million premature deaths by 2100."

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department.

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