by Carl V Phillips
For completion of this series (with this footnote), the following is what I submitted to FDA. My comment does not yet(?) appear on the public docket as of this writing. But I got a confirmation (conf code 1k1-8xfb-dhwh if you want to search for it later). It has a bit of extra content beyond what I already presented.
I know a few of you urged me to rewrite my analysis in a more, er, formal manner. While I understand their reasoning for doing so, I chose not to take time from my other obligations to do that. I honestly think it does not make any difference. I am reasonably confident that FDA “fulfills” their obligation to consider all the comments by having a low-level staffer read on each one, without reporting anything of substance up the chain, so they can check a box that says they read and considered each of them. If this proposed rule is not withdrawn for political reasons or as a result of the various procedural problems, then whoever is pursuing a lawsuit to strike it down can enjoy my essays as they mine them for substance. (Shameless plug: Of course, if they would like to hire me to formalize anything, I am quite good at that.) Besides, I might manage to embarrass that staffer who reads it into going into a more honorable line of work.
The content follows:
The primary purpose of this comment is to demonstrate that FDA’s assessment of the supposed benefits of this rule (115 fatal cancers averted per year) is fatally flawed for approximately half a dozen reasons, each one of which is sufficient to invalidate it. I have published the analysis in the following three blog posts, which I incorporate into this comment by reference:
(I have also attached printouts of them for completeness, but I would suggest reading the online versions with live links.)
The implication of that analysis is that there is no scientific basis for claiming that any disease incidents will be prevented by this rule, let alone the specific quantity claimed by FDA as the rule’s justification. Based on this alone, the rule should be withdrawn.
This analysis should not be interpreted as implying that if, counterfactually, the 115 figure were actually science-based, then it would justify the rule. There is no analysis of the negative health impacts from driving smokeless tobacco users to smoking when their preferred products are banned. The absence of this analysis is another sufficient reason for withdrawal of the rule. Moreover, even there were a legitimate reason to believe there were health benefits, and even if there were no health costs, justifying this rule would require a cost-benefit analysis that considered the welfare loss to consumers and other costs. The absence of this analysis is yet another sufficient reason for withdrawal of the rule.
Finally, given the lack of cost-benefit analysis of any sort, there obviously is no justification for choosing the particular quantitative standard in the proposed rule (even apart from the fact that it appears to be 1/4 of the intended quantity). This makes the choice of the standard arbitrary and capricious. It appears it must have been chosen with an eye to which particular winners and losers it would create, as I presented in this footnote to the previous analysis here (incorporated into this comment by reference and also attached):
While not central to the main point of this comment, this is a further problem with the legitimacy of this rulemaking.