by Carl V. Phillips
In the U.S., some state-level regulations to prohibit the sale of e-cigarettes to anyone under 18 years of age (the same age for legal purchases of cigarettes or smokeless tobacco) have been introduced, though not as many as you might expect, with even fewer passing. This seems kind of odd, since no company or industry group opposes such restrictions (and many actively support them and even enforce them even when not legally required), nor does any consumer advocate. That is not to say that there is no argument against the restriction — someone could argue that it is better that kids have easier access to e-cigarettes than they do to cigarettes, or that they should be no more regulated than similar products like coffee, “energy” drinks, or nutritional supplements, which kids can buy. But whatever such arguments could be made, no one is making them.
So who is preventing universal adoption of bans on sales to minors, and what arguments are they making? The opposition to such restrictions is led by the American Cancer Society and their anti-THR allies. Yes, you read that right. Someone jumping into this discussion with no knowledge might not find that surprising: “The American Cancer Society opposes sales restrictions on e-cigarettes? Well that makes sense, since they are a great tool for reducing cancer risk.” But, of course, they do not really care about reducing cancer risk in this case, and they lead the campaigns of regulation and disinformation to prevent adult smokers from switching to e-cigarettes.
What are they up to? Well, let’s consider the testimony of the ACS representative at the recent hearings in Rhode Island (quoted in its entirety). The bill under consideration would impose onerous restriction on e-cigarette merchants (not merely prohibiting sales to minors), and thus CASAA and those who share our concerns with preserving adult access to e-cigarettes oppose it. But the stated focus is preventing children from buying them.
Good afternoon, Chairman. I’m Susan Roberts. I am the State Director of Governmental Relations and Advocacy for the American Cancer Society Cancer Action Network. And again, I want to reiterate what my former colleague [from an allied ANTZ group with a similar position] testified to, that we really appreciate that the chairman has taken a look at protecting our youth here in Rhode Island.
We do have some concerns about this bill, and we also recognize that you realize that this bill has an identity crisis. It looks like a Trojan horse to us. I mean, it is coming to us saying that it’s protecting youth, and, in fact, what it’s really doing is circumventing some things we didn’t really get into a little bit today: FDA regulation of these products.
Um, how is that again? FDA regulations of FDA-regulated products preempt state law. There is no way a state law could circumvent FDA regulation of the products. This is especially true because: (a) There is no FDA regulation right now to circumvent, other than general lab standards and regulation of the food-quality ingredients, nor will there be for quite some time. (b) It is impossible to imagine that anything in a bill that imposed requirements on retailers and prohibits minors from purchasing — which is all this does — could circumvent anything FDA might ever do, even apart from the preemption issue.
So that is of great concern because right now, FDA is looking at these products to figure out how safe and effective they really are, and we want to wait.
Except that they are not. They have not even asserted regulatory authority over these products (yet), and FDA itself certainly does not have the capacity to do such research even if they were ready to move. FDA outsources research, usually to the manufacturers themselves. You would think that ACS would know that.
It’s essential that we wait until we get guidance from FDA before we even put in any kind of ban for the products for youth.
*cough* Wait, did I mishear that? The people who want regulators to aggressively act to restrict adult use of THR, based on various speculative claims about what might happen someday, think that a “go slow and wait for more information” is the right approach to restricting children’s access. Exactly what do they think we might learn that would change our minds about acting. It is not like there is any chance they would ever reach the conclusion, “based on new guidance, we think that kids should be allowed to buy e-cigarettes”.
And we would ask that you do that and work with the Department of Health when it comes time so that we can make sure that we define those products in the appropriate way, that we capture all of the products to keep those out of the hands of youth.
So, um, the worry is that the definition is not broad enough yet? So the argument is “because there will be more and different products in the future we should not restrict any products now until we know what they all are”? Actually that seems like a great idea. If they were to offer the same argument for adult access, that is. Maybe we should start quoting them on that: “The American Cancer Society says that we should wait for further evolution of the e-cigarette market before any regulations are imposed.”
And not only that, since FDA has not had a chance to evaluate these products in full, you know, there’s also great concerns that these are in the hands of adults right now. I can tell you in the back of the room, there were folks using these vapor products right here in the room, and my chest began to hurt, and my throat was hurting. And I’m very sensitive to those things, and there were other folks in the room saying the same thing. So we ask that you wait until FDA actually reviews these.
Ah, so there it is. Ms. Roberts used her claims of psychosomatic reactions to a few people vaping (and presumably barely exhaling much vapor in order to be discreet) and her projections of her rather unique reactions onto others to try to hide the admission of ACS’s real motives: We do not like preventing sales to minors because it might interfere with our goal of banning sales to adults. I will write more about the implications of this tactic in a subsequent post, because it is quite significant.
There’s another thing in here that you had mentioned about youth access, and there’s some penalization of youth for products in here. That’s no mistake by the industry. They put that in. They actually want to see youth penalized and not the retailer penalized for selling those products to youth. And so it’s a long-term tactic of the industry. We just want to make you aware of that.
Again, huh? If they did not like the penalty for the kids themselves — a reasonable position — why did ACS call for rejection of the bill rather than a simple amendment? Apparently she is trying to imply (lie) that the kids faced punishment while the merchants did not, which is very much not true. As for the “industry” bogeyman, it is true that this is one of several e-cigarette bills secretly authored by R.J. Reynolds, which CASAA has opposed because they are designed to hurt sales channels (internet, e-cigarette specialty stores) that would compete with RJR’s own e-cigarettes, which would presumably be sold alongside their cigarettes. But if ACS were honestly interested in supporting the minor sales ban (which is CASAA’s position) they would just try to get rid of the bit they did not like (which is what CASAA has been doing with these bills) rather than trying to scrap the whole thing. The only apparent explanation is that this is just an excuse for their real goal, blocking the minor sales ban in order to use the lack of such bans as an excuse for prohibition.
And then the Clean Indoor Air, this could actually roll back Clean Indoor Air. So there are several things in here, circumventing taxes, FDA.
I am just going to assume that passage was a burst of Tourette Syndrome, since it seems like just a bunch of random words that bore no relation to this bill about retail sales practices.
And one of the other things I just wanted to bring up when we talk about FDA. So imagine for a moment Big Pharma, pharmacy industry, would come in and tell you, “Hey, we’ve got a drug that’s under review by FDA, but we’re asking you as a lawmaker to circumvent that altogether, and you determine what should happen.” That’s just completely wrong. FDA was put together by Congress. They have the authority to do what they need to do to protect your constituency.
Yes, from the steel-trap minds of tobacco control: Restricting sales to minors of a product that FDA does not regulate is exactly the same as violating federal law by allowing sales of a drug that is currently illegal to sell pending FDA approval.
And I know, Chairman Melo, you’ve done a great job in the past, and we really look forward to working with you in the future to help guide you, and we’ll serve as a resource. People–you were asking what we’re doing to protect children from these products, we–once FDA gives us that guidance, I can assure you, sir, with you and with all of the others, we’ll work to protect the youth from these products. So thank you so much.
I have no further questions for the witness.
[UPDATE: Julie Woessner points out that the role of “public health” groups blocking minor sales ban is not exclusive to ACS, but rather American Lung Association and American Heart Association have taken the same position (though perhaps not recently). See her comment about Illinois in 2010 for interesting details. I have added ALA and AHA to the tags for this post.]