Attacking ecigs to encourage continued smoking: predatory lawsuit and goofy California law edition

by Carl V Phillips

I have finally realized that there is an answer to “what benefit results from FDA jurisdiction over tobacco products?” FDA regulation (and I use that term very loosely) has harmed consumers and commerce by gumming up free markets, damaged public health by interfering with THR, and threatens to do far more of each in the future, all for no apparent benefit. When asked to explain what they have accomplished, even FDA CTP or their umbrella agencies have no answer. They invariably lead with the banning of flavored cigarettes when trying to brag about their accomplishments, even though this happened basically on day one, was specifically mandated by Congress, and did not do anything other than deprive the few thousand adult smokers who actually used those products of a bit of life’s pleasure. I would have to call that self-damning with faint praise.

But there is an answer to the question: Without federal preemption, California would have a free hand to regulate these products.

I am obviously not saying this justifies the enormous social harm that has been and will be caused by FDA “regulation” of tobacco products. After all, most of us think of Californians much as we do Saudi Arabians or Australians — we might feel a bit sympathy about their welfare-reducing governments, but their lives are still better than most humans’, so it is hard to feel too bad. But still it is the answer to the “name even a single benefit” question.

California has a law known as Proposition 65 whose anti-science is just one step better than executing people for witchcraft. It requires that every building that the public is allowed in post a warning that there are chemicals present that are known to cause cancer and reproductive harm. Ok, strictly speaking it requires that only if those chemicals are present, but since they always are present everywhere, that is a distinction without a difference. This is not a warning about actual risk — an inconsequential quantity of one chemical that breaks the ridiculously low threshold requires the same warning as the air being thick with toxins — so this obviously serves no useful purpose. There is a similar requirement for many consumer products. Selfish lawyers can make a nice living shaking down businesses that violate the utterly useless provisions of Prop 65.

Ironically, cigarettes do not have to have the California warning about carcinogens or harm to fetuses, thanks to federal preemption. At the moment, though, e-cigarettes do not benefit (and, again, I refer to a single benefit, not overall net benefit) from that preemption. Thus, some lawyers — in this case operating under the guise of being a public interest charity — are using Prop 65 to shake down e-cigarette manufacturers. The group fancies itself “The nonprofit health watchdog Center for Environmental Health” (CEH), even though most of its income from the last year reported came from awards from lawsuits and “fees” (which I am guessing are shakedown payments, since it is not clear who they could be legitimately charging for their “services”) and it was described as the “most predatory litigant” in the Prop 65 space. They describe themselves thusly:

The Center for Environmental Health (CEH) is the leading national nonprofit committed to ending health threats from toxic chemicals in our air, water, food and in products we use every day. CEH protects children and families from harmful chemicals by working with communities, consumers, workers, and government to demand and support safer business practices. We also work with major industries and leaders in green business to promote healthier alternatives to toxic products and practices.

It would be funny if they were not so harmful. You would think that the “leading national nonprofit” would be a household name. Had you ever heard of them before this week? I didn’t think so. You probably have heard of the NRDC — there is a lot bad to say about them too, but at least when they use the word “leading” you do not giggle. I also like the “children and families” bit — if you are single, then you can just go suck benzene. But of course, the real problem is the claim that forcing business to put an utterly pointless “warning” everywhere — a statement which ACSH cleverly describes as “ignored by the populace, except for Prop. 65 lawyers” — does anything whatsoever to help anyone other than the lawyers.

It was CEH that attacked e-cigarette manufacturers over Prop 65 warnings earlier this year. At least that produced some humor. But their true harmful nature came out this week when they not only filed a notice that makes demands of and threatens legal action against numerous of e-cigarette companies which would provide no conceivable health benefits, but released a “report” (which is really a marketing-style brochure) that made junk science claims that would tend to scare smokers away from switching to e-cigarettes. In particular, their headline claim in their press release was “High Levels of Cancer-Causing Chemicals in the Majority of Nearly 100 E-cigarettes Tested”. How high? They offer absolutely no context for that word in the press release and nothing clear in the “report”.

We know that the real answer is “not high enough to worry about”. The two chemicals they are talking about are formaldehyde and acetaldehyde, which have been measured in pretty much every study of e-cigarette emissions and found not to be present at levels that pose a concern. The thing is, the Prop 65 exposure limits for these are such that everyone will exceed them. You exceed the formaldehyde threshold merely by breathing (and recall that dead people were not included in that list with children and families). So their vague reporting of how many multiples of these meaningless numbers they found are not informative about their results, and offers no support for their attempts to scare consumers.

Your first question about how they got their results might be what lab methodology did they use to produce those quantities? They do not say, other than saying it was done using smoking machines, which very likely resulted in the overheating that produces far more pyrolysis products than actual vaping does. They insist that they did not overheat the devices, but offer no substantive support for this dubious assertion. But those observations are not anywhere near the top of their failures to report their methods. That list starts with them not even reporting what quantity of consumption generates the supposed results. As far as we know, they estimated the total exposure that would result from taking every waking breath as a puff on an e-cigarette. The failures continue from there. Gregory Conley sought more information about their methodology, but reports that they refused to provide it. Not exactly surprising.

Of course, those problems are only failures if one models their behavior as attempting to help people or to do science, rather than to shake down manufacturers for a few million dollars, and perhaps get a piece of the tobacco control industry gravy train. Since most of their “report” has nothing to do with their actual Prop 65 complaint, but is just a simplistic shoveling of every anti-ecig myth and complaint that tobacco controllers recite, it seems like the latter is part of the goal.

I am not sure whether CEH ever did anything that actually improved anyone’s health. But if they did, any such benefit could easily be swamped by what they are doing now. If the public even notices this money-grab, and if they believe the claims (or others cause them to), it will probably cause a lot of would-be vapers to smoke instead.

Already a few ANTZ are gleefully reporting on this travesty as if it has information value about e-cigarettes causing harm. We can come back to that question I started with, “is there any benefit whatsoever?” In this case, there is information value: Anyone who touts this anti-scientific attack as if it were informative is making clear their utter scientific illiteracy and lack of ethics. Not just the tobacco control standard level of illiteracy, lack of ethics, and generally cluelessness, but something deeper still. They are repeating meaningless rhetoric that is based on completely unreviewed assertions whose actual meaning cannot even be determined because of missing information. This does not even rise to the level of being junk science — it is non-science, as should be obvious to anyone who reads even the press release.  Moreover, that claim comes from an organization with no scientific credibility, and for whom the term “conflict of interest” does not even apply because their only apparent interest is bolstering their legal claims.

So which particular bottom feeders sunk to this new depth? That would be the World Health Organization (FCTC), as well as a few of the worst pseudoscientists (Glantz, Chapman, Malone) and others among the least credible anti-THR activists (World Lung Foundation, Leno (this guy)). But most of the other usual suspects have been sensibly silent about this travesty, refusing to stoop to quite this level. We can thus now have a new measure — the CEH Test — for differentiating standard tobacco control levels of evil and/or stupidity from the worst of them. Let’s see if anyone else sinks below this line by citing the CEH claim.