Hamburg letter helps clarify FDA’s naivety regarding e-cigarettes

by Carl V Phillips

The great mystery of the proposed FDA regulation of e-cigarettes is what benefit they think the proposed regulations would have.  As we have pointed out (here and here), the proposed regulations seem to impose costs — in the form of what is basically busy-work — without offering any apparent benefits.  A letter to the NYT from FDA Commissioner Hamburg suggests that FDA has absurd faith in the value of that busy-work (though we cannot rule out the alternative explanation, that FDA knows as well as expert observers do that it is worthless, and they are just intentionally imposing costs and lying about their motives).

I will set aside her background lies (e.g., the claim that e-cigarettes are “completely unregulated”) and focus on the single claim about what benefits the regulations would offer:

When it is finalized, e-cigarette companies will be required to report the levels of harmful and potentially harmful chemicals or chemical compounds delivered by their products. But we cannot enact a rule on reporting or restricting e-cigarette emissions until this foundational rule-making is completed, which is one of our highest priorities.

For those who are not familiar with the FDA tobacco regulatory process, the harmful and potentially harmful chemicals (HPHC) rules require that manufacturers test their products to determine the quantities of a particular list of chemicals.  Cigarette manufacturers are also required to test the smoke.  It is completely ambiguous as to whether e-cigarette vapor would have to be tested.  It is obviously not mentioned in the Tobacco Control Act itself, and the draft deeming regulations (in one of their many glaring omissions of obviously important information) repeatedly refer to the HPHC rules without clarifying this.

Indeed, the ambiguity is worse than that:  It is easy to answer the question “what is in this” when “this” is processed tobacco leaf with a bit of paper.  It is rather more difficult when the product is a disposable e-cigarette.  Do they want to know the quantity of the listed chemicals that are in the product overall, including the battery?  Presumably they will figure out that they are talking only about the liquid (and maybe produced vapor), but they have not gotten that straight yet.  They emphasize that e-cigarettes will be subject to HPHC reporting. They do not explain what that means.

So part of the apparent problem is that FDA has not even thought through the simple lawyer points, let alone the science.  But that is just the start of the problems. The biggest flaw in their faith in HPHC reporting is simply this:  The HPHC reporting process has proven to be utterly useless busy-work.

FDA has been collecting HPHC information on cigarettes and smokeless tobacco for years.  They have no idea what to do with this information.  They are required to report it, but without inadvertently and misleadingly communicating that products with lower quantities are less harmful than others.  Good luck with that.  They are, indeed, at an utter loss as to how to do so, and so have been putting it off.  The story is no better in terms of making other use of the information. That “inadvertently and misleadingly” in this case is legitimate.  Unlike the typical ANTZ rhetoric about “misleading” people into realizing that low-risk products are really low-risk, this is a case where there genuinely is no reason to believe the differences within a product category matter enough that anyone should care.

It is expected that FDA will eventually exercise its authority to ban some product SKUs that have higher levels of particular chemicals.  There is no evidence this will be good for people’s health (perhaps a little bit, but undoubtedly too little to measure).  Cigarettes, even with lower quantities of some of these molecules, will still be very harmful.  Smokeless tobacco will still be immeasurably close to harmless.  The HPHC numbers will mainly serve as an excuse to ban some products, which is what they really want to do.  If they picked the SKUs to ban at random, it would have basically the same effect.

The problems with this exercise become worse in the context of e-cigarettes.  The particular list of HPHC chemicals is not the right list for e-cigarettes.  Most of them are a complete waste of time to measure (e.g., e-cigarettes are never going to produce enough PAHs or TSNAs to matter), while other molecules or compounds that are more of an issue with e-cigarettes are not on the list.  It is worth noting that even if the list were the right list, we do not have any evidence that higher levels pose a measurable risk, as with smokeless tobacco.

FDA thinks they are going to address that ignorance.  They are wrong.  Hamburg continues:

The F.D.A. is committed to the science-based regulation of these products to better protect public health. Where the science does not exist, we are able to finance the research to answer key questions related to e-cigarette safety and consumer behavior, including four studies that will focus on the contents of e-cigarette vapor.

After those of you who have read the last ten posts here finish laughing at that first sentence, consider what they are proposing to do.  Four studies on vapor. There have already been enough studies on vapor to assure us that there are no significant systematic risks from it, as reported by Burstyn (2014) — which, incidentally, is not among the 200 references in their “science-based” proposed regulations, even though it is, by far, the most important paper on the topic of e-cigarettes and health.  Four more studies of the contents of vapor are not going to add much to that.

Indeed, it is not clear that the literally thousands of studies of the contents of vapor that would be required by the HPHC reporting (assuming it requires testing of vapor) would add much useful knowledge.  Studies of the right potential contaminant or pyrolysis chemicals might be useful for improving manufacturing.  But FDA is fixated on the wrong chemicals and measures.

Of course, improving production does not seem to be part of the plan.  The proposed regulations would be a de facto ban on 99% of e-cigarette products out there (assuming they are able to exert jurisdiction over them), due to the enormous cost of compliance with the busy-work.

I keep waiting for something to come out of FDA that suggests they have a clue about what to do to make tobacco products — e-cigarettes or others — better for consumers.  But there is nothing.  Instead, there is a stream of claims that effectively say “if we just impose some random regulations, that will make things better.”  It is difficult to know whether these are (a) genuinely naive, (b) purely a hidden agenda to try to drive products off of the market with busy-work while pretending it serves some purpose, or (c) the classic “bureaucrat” stereotype of giving regulators a hammer and them doing what comes naturally.


8 responses to “Hamburg letter helps clarify FDA’s naivety regarding e-cigarettes

  1. Pingback: Hamburg Letter Helps Clarify The FDA Naivety Regarding E-cigarettes • The Spinfuel Vaping News

  2. Carl,
    You make a critical point about the lack of public health value of the massive bureaucracy and red-tape requirements this deeming regulation is going to create. While I have written about the harm that will be caused by these provisions, I have neglected to think about the fact that they are not even offset by any public health gains. So thanks for this insight. (Also, I am curious to hear your take on Stan Glantz’s latest: his review article in Circulation.)

    • Carl V Phillips

      Yes, that is our (CASAA’s) position which we have made public in the press release and the other blog post that is linked: there are no apparent benefits by any legitimate measure. Not for health. Not for anything.

      That Glantz paper is an even weaker version of a commissioned hatchet job (your words were exactly right) they wrote for the WHO. It is completely absurd. I don’t know when these people just know no science and do not read (how many times do we have to explain that droplets are not particles) and when they are know they are lying. I guess I should add something to my FDA series here about how FDA is paying for people to write complete nonsense that tends to support their proposed prohibition.

      I totally agree with your assessment that the studies they cite about cessation do not provide any information about cessation. However, I think the emphasis should not be on what the studies were designed to do (as you phrase it), but rather on why they do not provide information on the point. That is, a study need not be designed for a particular purpose for it to happen to have data that serves that purpose. For example, our best information about how many people have quit using e-cigarettes is from sales data, and the collection of that is not designed to measure smoking cessation. The key reason that those studies fail to address the question (other than Vickerman, which is even less relevant for the reasons you — and the authors themselves! — point out) is confounding. It is the same problem I talk about regarding Glantz’s gateway lies here: (which reminds me, I need to post the working paper of the full analysis of that). In short, people who try e-cigarettes are different from people who do not try e-cigarettes, for reasons that are not caused by e-cigarettes.

      I think the fundamental problem with all of this — the fact that journals accepted these papers in particular, not the fact that the authors were inclined to lie — is the fundamental lack of scientific understanding among those educated in health fields. It is demonstrated by the FDA in their review papers that I analyzed a few weeks ago, which makes it extra scary. These people simply have no idea how to engage in scientific reasoning. They learn a few techniques, a few rules of thumb and how to run a piece of software, and think they are doing science. But they are more like grade school kids aping science. They are genuinely clueless about the problem of confounding. Glantz makes no reference to confounding in any of the aforementioned papers. I think Frieden might actually genuinely believe that “anecdotes” are not scientific information, because in the simplistic rule-of-thumb based science education he had, someone once told him that. These people’s education (such as it is) and acculturation actually make them worse scientists than that average person. The average person who thinks about this stuff for a few minutes will say “hey, wait a minute, what about…?, and so is a better scientist than these authors.

  3. Norbert Zillatron

    This gets even more absurd, when you consider that there are companies that specialize on single components: liquids, atomizers, batteries. What are they supposed to test?

    Moreover, the best atomizers are today the rebuildables, where the customer creates his own coil & wick setup. How are they supposed to be tested?

    My slighty paranoid suspicion is: They can’t provide those required “tests” -> BANNED.

    What remains on the market then?
    Only the disposable junk and the proprietary disposable cartridge system made by BigTobacco. So the FDA subserviently provides them with more red tape to strange the pesky better competition with.

  4. Pingback: LETTER MAIL PRESIDENT 2014

  5. I think it has been pretty apparent for the last couple of years that the FDA has one purpose with these regulations. That is to make production compliance of PVs and juices too expensive for any except the multi-billion dollar corporations that can afford the make-work testing and documentation.

  6. Pingback: FDA Friday, May 30th / ecigexpress Blog

  7. Pingback: Scientific claims in the FDA deeming regulation (part 1 of ???) | Anti-THR Lies and related topics

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