The Ugly Ugly FDA's Cartel Enforcement
By David Henderson
E-cigarettes do not contain tobacco. They contain nicotine, a chemical derived from tobacco and other plants.
Plain English was never a deterrent, though, to regulators on an empire-expanding mission. The Food and Drug Administration this week rolled out new regulations on e-cigarettes based on a 2009 law giving the agency power over products that “contain tobacco.”
This is from a first-rate editorial by Holman Jenkins in today’s Wall Street Journal, “The FDA’s Misguided Nicotine Crusade.” There’s not a wasted paragraph, and were I to quote the best paragraphs, I would be quoting the whole thing.
Here’s one other key paragraph though:
E-cigarettes, let’s remember, operate by heating a solution containing nicotine, rather than burning tobacco. These small operators are unlikely to afford the estimated million-dollar cost of submitting each and every existing product and product variation for retroactive consideration by the FDA, as required by the law. Their trade group, the Smoke-Free Alternatives Trade Association, estimates that 99% of existing products therefore will exit the market during the two-year phase-in of the prohibitory new rules.
Jenkins’s article could easily have been titled, with no exaggeration, “The FDA’s Nasty Pro-Tobacco Crusade.”
It’s hard for me to believe that a well-funded public interest firm–Institute for Justice, maybe–could not have a good case against this regulation. When the Congress gives the FDA power to regulate tobacco, and the FDA uses this power to regulate something that contains zero tobacco, one would think the case against the FDA would be slam-dunk.