posted by Carl V Phillips
Continuing the series started yesterday, we are responding to disinformation from the FDA at the behest of one of our members whose employer (an agency of the US government) is trying to keep her from vaping based on FDA claims. In particular, her boss justified his action based on this FDA document.
The first thing to observe is that this note from the FDA, identified as “news & events”, should be seen more as a blog post than a policy statement. This may sound like a one-off observation, relevant for the one person to whom this note was presented as if it were government policy. But it actually introduces an important point about the pattern of FDA’s (and some others’) lies: FDA and some other actors often put out throw-away junk claims in forums where they are not subject to review or oversight, but can still give the impression that they are making official statements. This is possibly against the law (I will leave it to others to judge that) but is certainly sleazy and bad behavior by a government agency.
I am not talking about things like the @FDAtobacco twitter feed which, as I have noted before, is embarrassingly amateurish and a serious embarrassment to the US government. That is a different problem, but at least no one with any clue would take it seriously. I refer to documents which look like official statements but are not — and thus lead to (presumably intentional) confusion like that of our member’s boss.
As noted yesterday, FDA is a police agency that often gets mistaken for a science agency. It is perfectly legitimate for scientists to float their half-baked ideas in public to see what feedback they might get — indeed, public health science would be so much better if this were done like it is in “real” sciences. But actors with police powers are obligated to avoid such behavior. Imagine the legitimate objections if a police agency published a newsletter in which they wrote things like, “the district attorney refused to try to take action against Acme Novelties for selling faulty road runner traps despite the evidence we collected, but we still think they are guilty and intend to make arrests as soon as we find some evidence.” Needless to say, this would provoke justified outrage; they are free to continue their efforts, of course, but effectively pre-declaring what police actions they are going to take is unacceptable and probably illegal.
Yet consider from the FDA document:
FDA [lost] the decision by the U.S. Court of Appeals … holding that e-cigarettes and other nicotine-containing products are not drugs or devices unless they are marketed for therapeutic purposes, but that other nicotine-containing products can be regulated as “tobacco products” under the Federal Food, Drug, and Cosmetic Act. Therefore, FDA intends to develop regulations for electronic cigarettes.
This would be fine as a technical statement of agency plans, in an appropriate forum. But consider what else appears in the document:
…contain ingredients that are known to be toxic …. may be attractive to young people and may lead kids to try other tobacco products …. no way of knowing whether e-cigarettes are safe …. Please report adverse events with e-cigarettes …. warning letters to electronic cigarette distributors for various violations of the Federal Food, Drug, and Cosmetic Act …. Public Health Experts Announce Potential Health Risk Posed by e-Cigarettes …. More Information on Safely Quitting Tobacco
You see the pattern. I will address the various specific lies in subsequent posts. My current point is that when “intend to develop regulations” is presented in that context, it is pretty clearly an accusation and threat that avoids proper procedure — procedure that exists for very good reasons. A police agency can make a flat statement that they are investigating the public claims made by Mr. W.E. Coyote against the company. But they cannot also publish every speculative claim and bit of unexamined evidence they can come up with.
FDA can propose or take action that they believe is within their policing authority. When they do, they can then be subject to lawsuits, legislative action, and popular uprising. Having done that once regarding e-cigarettes, and having lost, they have resorted instead to playing games of making unofficial statements that sound like official policy, but are not subject to any oversight or review. This is a violation of the public trust and the authority granted to them as police (the spirit of it, if not their legal authority per se), just as much as their scientific lies, but it has largely been overlooked. They are playing the role of cop in the worst way — making intimidating statements and exercising power via implicit threat (“you are not under arrest — we just want you to come in voluntarily and answer a few questions”) while avoiding the official action that would subject them to scrutiny.
In some ways, that is more disturbing than the lies themselves.