Will Trump Stop the FDA's May 11 Vape Apocalypse?

by Aperitive Collaborator January 21, 2020

President Trump told Department of Health and Human Services Secretary Alex Azar that he regrets ever getting involved in vaping policy. “I should never have done that f***ing vaping thing,” Trump told Azar over the phone during a campaign meeting, according to Axios. The topic came up during a campaign team discussion of healthcare policy.

According to White House officials, Trump doesn’t regret the policy the White House finally settled on—banning the sale of pod- and cartridge-based vaping products in flavors other than tobacco and menthol. Rather, the President is sorry he ever personally waded into the controversy at all, and wishes he had left the decision to the FDA.

In September, pushed by Azar, First Lady Melania Trump, and adviser Kellyanne Conway, Trump announced he would take forceful action to reverse the “youth vaping epidemic.” He personally backed the administration plan, which originally included a ban of all flavored products.

“The Trump Administration is making it clear that we intend to clear the market of flavored e-cigarettes to reverse the deeply concerning epidemic of youth e-cigarette use that is impacting children, families, schools and communities,” Azar said at the time.

After several weeks of pressure from vapers and conservative activists—including a rally by vapers outside the White House—Trump’s campaign staff convinced him a flavor ban would lose more 2020 votes than it would gain. He backed off in early November—the night before the policy was set to roll out.

Later, following a contentious White House meeting that included vaping advocates and opponents, the administration pulled back from a complete flavor ban and settled on the more limited action, which gave vape shops and e-liquid manufacturers a reprieve.

“We’re going to protect our families, we’re going to protect our children and we’re going to protect the industry,” Trump said.

But did he really protect the industry? The FDA guidance did nothing to change the FDA’s plan to impose a ban on all vaping products that haven’t submitted a Premarket Tobacco Application (PMTA) by the scheduled deadline of May 11. How long can small businesses survive living under constant threat? Many have closed in the last several months, and many more are on the brink.

It’s unlikely that vapers and business owners who consider themselves single-issue voters will forgive the President for whatever actions the FDA takes to enforce the PMTA requirement. Whether Trump tries to shift the blame to the FDA or not, the vapers who have become politically active in the past five months understand that the FDA is Trump’s agency, and it is ultimately executing Trump’s policy. Vape shop owners and employees will not forget in November who was in office when their businesses were shut down.

Can Trump do anything to prevent the vape apocalypse—the May 11 PMTA deadline—from destroying the independent vaping market? Maybe. He could apply pressure on the FDA to come up with a creative solution, as former FDA commissioner Scott Gottlieb has suggested might be possible. Possibly the agency could create a separate, simplified approval process for small independent businesses, or use its enforcement discretion to allow open-system products like mods and bottled e-liquid to be sold in adult-only stores while it sorts out its hopelessly confusing PMTA process once and for all.

However, the agency has had ample time to come up with a fix already, and hasn’t done it. The more likely FDA response—if there is one at all—would be another round of selective enforcement of the agency’s rules, which means kicking the can down the road yet again.

If Trump loses this fall, it’s unlikely a Democratic president will allow the FDA to continue such a policy. Even if Trump wins, he’ll probably get tired of protecting the vaping industry once the need for vaper votes has passed. After all, vapers aren’t the only group with an interest in the issue. As happy as the vaping community was when the FDA announced its “limited” flavor ban, that’s how unhappy anti-vaping activists were.

The Campaign for Tobacco-Free Kids and their allied organizations will use the Trump administration’s “capitulation to both Juul and vape shops” as ammunition to push Congress and state legislatures for flavor bans, online sales restrictions, taxes, nicotine caps, and other laws to reduce the availability and quality of vaping products. Tobacco-Free Kids has $160 million of Michael Bloomberg’s money to work with, and they won’t hesitate to spend every dime of it while the issue is still hot. The anti-vaping organizations have Melania and Ivanka Trump on their side too, as well as Azar and Kellyanne Conway.

The vaping community and independent industry is approaching a reckoning. If it is to survive in anything like its current form, many more vapers need to become politically aware and active, vape shops and other small businesses—all of them—need to put their money into the fight, public opinion must change, and we will have to convince politicians in both parties to defend vaping. It seems impossible that so many major changes could be accomplished in such a short time.

The alternative, depending on how the FDA chooses to enforce its rules, may be a future that sees many vape shops closing, some shifting their business model to include CBD and other cannabis (and maybe even tobacco) products, the biggest e-liquid manufacturers selling overseas only or closing entirely, and vapers obtaining the products they need through a patchwork market of Chinese mail-order and black market or DIY e-liquid.

It’s a grim vision, and one that shuts out most smokers and new vapers. But it’s a future everyone should be prepared to face. It won’t happen instantly on May 12, but unless a lot changes very quickly it will happen.

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Article Author: Jim McDonald

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