Free-Market Groups Join Lawsuit Over E-cig ‘Deeming Rule’

Published August 30, 2016

Two free-market think-tanks are joining a federal lawsuit challenging the legality of new government restrictions on e-cigarettes.

Nicopure Labs, an e-cigarette manufacturer with headquarters in Florida, originally filed the lawsuit in May, alleging Food & Drug Administration (FDA)—a federal agency operating under the U.S. Department of Health and Human Services with the stated mission of “protecting the public health by assuring the safety, effectiveness, quality, and security of human and veterinary drugs, vaccines and other biological products, and medical devices”—illegally expanded its regulatory authority over tobacco products to include products without tobacco.

The non-profit organizations, TechFreedom and the National Center for Public Policy Research (NCPPR), filed briefs in August supporting the plaintiff, Nicopure Labs.

On August 17, government lawyers representing FDA filed for U.S. Court of Appeals for the D.C. Circuit judge Amy Berman Jackson to enter a summary judgement and end the case.

The regulations became active on August 8, and apply to any e-cigarette product introduced to consumers after of February 15, 2007, effectively banning nearly all current e-cigarette products available to consumers by requiring manufacturers to pay costly fees and fill out paperwork for products that may have been already approved by the government.

Real and Imagined Risks
Jeff Stier, a senior fellow at NCPPR, says FDA has admitted it doesn’t really know if e-cigarettes are as harmful as they claim.

“In the regulation, the FDA concedes that it doesn’t know the benefits of e-cigarettes, in terms of ‘do they really help people quit smoking,'” Stier said. “The FDA acknowledged it doesn’t know all the dangers of e-cigarettes, they’re relatively new and we just don’t have the long-term data of health effects.”

All About the Benjamins
Christopher Snowdon, director of lifestyle economics at the Institute of Economic Affairs, says FDA’s regulations are more about preserving cash flow than preserving public health.

“FDA is being extremely helpful to the tobacco industry by stamping out e-cigarettes,” Snowdon said. “The states of the U.S. are highly dependent on tobacco sales, as a result of the Master Settlement Agreement, and the FDA’s policies will secure that revenue in the medium to long-term.”

Harming Public Health
Snowdon says anti-tobacco “zealots'” efforts are actually promoting the interests of tobacco companies.

“I’m afraid the U.S. is one of the worst countries in the world for misinformation about e-cigarettes, thanks to the activities of zealots in the tobacco control movement, particularly in California, who don’t seem to realize how helpful they are being to cigarette manufacturers,” Snowdon said.