Hands Off the Fruity E-Cigs

Participants puff during the vape competition at the Vape Trade Convention in Mexico City, Mexico, June 11. (Victor Ruiz Garcia/Reuters)
The planned regulation is an affront to personal freedom.

The Trump administration’s Food and Drug Administration is gearing up to ban e-cigarette flavorings besides the ones that taste like tobacco. It’s unclear if this would have any benefits for public health. What is clear is that it will be a disaster for personal freedom, and that this is not a decision that Congress ever should have left in the executive branch’s hands.

Smoking cigarettes is one of those things that we allow adults to do even though it’s obviously bad for them, causing numerous cancers and other health problems. There are extra taxes involved, but smokes are openly for sale pretty much wherever you go. It’s a free country.

But in 2009 Congress, in its infinite wisdom, gave the FDA the authority to regulate tobacco products — except for all the products that were already on the market. This meant that the agency would have authority over upstart products competing with cigarettes, but the rules would not apply to cigarettes themselves.

Upstart products such as e-cigarettes, which deliver nicotine without all the tar and other nasty chemicals that cigarettes contain, and are estimated to be 95 percent safer as a result. (Nicotine by itself is not that harmful; it even provides some health benefits.) E-cigs, the FDA can yank off the market on a whim. Marlboro Reds, those will be fine.

The public-health impact of banning e-cig flavors is therefore rather unclear, as the alternative to e-cigs will be unaffected. On the one hand, fruity flavorings do appeal to minors, and minors are increasingly vaping despite the legal minimum age being 18. If they get hooked young, they may be addicted to nicotine for years, and some might even switch to cigarettes. But on the other hand, even for minors it’s far better to vape than to puff Camels, and it’s not as if no adult enjoys, say, strawberry flavoring. Better taste is one reason to vape instead of smoke for pretty much anyone who has to decide between the two, and if e-cigs are limited to tobacco flavoring, this rule could push some people back toward traditional cigarettes. And if real cigarettes are 20 times as dangerous as e-cigs, it doesn’t take much switching to cancel out the benefit of a reduction in vaping.

The forthcoming rule could also push people toward black-market products. Lately there has been much buzz about a mystery lung disease caused by “vaping” — but what it actually seems to be caused by is contaminated materials sold through illegitimate channels, including many that deliver THC instead of nicotine. Banning flavors would enlarge this market, and also encourage vapers to try to mix in flavorings themselves. One hopes they would find it easy to figure out which ingredients are safe to inhale and which are not. One is not too hopeful, however.

There’s also the tiny matter of the government telling everyone, including adults, what to do. Even if we take it at face value that teen vaping is a problem that demands government action beyond the minimum-age requirement already in place, there are ways to reduce it that don’t affect those of age — harsher punishments for selling to minors, information campaigns, even raising the age for flavored vapes to, say, 21 to reduce the number of minors who have friends who can buy them legally. But the administration has decided that if some teens are going to illegally vape liquids with names like Fruity Hoops, well then, no one can. One does not need to be a dyed-in-the-wool libertarian to be disgusted at this affront to personal freedom and responsibility.

Finally, there’s the insanity of the fact that a law passed in 2009, before the immense potential of vaping to reduce the harm of nicotine consumption became clear, is in 2019 enabling the FDA to assert its will over the entire industry. The law applies to “tobacco products,” including those derived from tobacco, and the nicotine in vaping liquids indeed generally comes from tobacco — so I do not dispute that the FDA does have this authority. Well, at least until the industry manages to make wider use of synthetic nicotine and prove, in court if necessary, that products made this way don’t fall under the FDA’s purview.

But the FDA shouldn’t have this authority. Congress should write laws, especially laws that ban entire product categories, not turn that power over to unelected busybodies who will opt for regulation over personal freedom every single time they encounter a choice between the two. The law is a mistake and should be changed, especially if the FDA is determined to abuse it in this way.

Adults should be free to do what they want, so long as they take responsibility for the consequences of their actions. That includes smoking. And it definitely includes the far safer alternative of vaping fruit-flavored e-juice.

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