Trump Just Avoided Making a Huge Mistake on Vaping

J ust a few months ago, the current administration announced a plan to do something very stupid. In a panic over the rise of teen vaping and a then-mysterious “vaping disease” that now appears to be caused by contaminated black-market marijuana products, it announced it would ban virtually all flavored nicotine vaping products.

Those products taste better than tobacco and appeal to young vapers. But they also appeal to adult smokers trying to quit. So the proposal threatened personal freedom, had nothing to do with the true cause of the mysterious disease, and might have harmed public health more than it helped. Vaping is far safer than smoking, so it is worth it to trade some increase in the former for a decrease in the latter.

Cooler heads prevailed, though, and now the administration has announced a much more sensible policy, set to go into effect in 30 days. Those of us who highly value personal and economic freedom won’t like it, exactly. But it mostly preserves adults’ options while making it slightly tougher for minors to vape, which isn’t the end of the world.

A key distinction the rule makes is between “cartridge” systems, such as Juul, and “open tank” systems. The former can no longer offer flavors besides tobacco and menthol, but the latter can. In practical terms: If you’d like to keep vaping strawberry or mango, you can throw out your Juul, buy some flavored nicotine liquid from a vape shop, drip it into a different vaping device that comes with a refillable tank, and carry on.

There are two justifications for drawing the line this way. One, cartridge systems are easier to use and thus appeal more to people taking up the habit for the first time. And two, cartridge systems tend to be made by the industry’s big players and sold at convenience stores and major retailers, while smaller businesses are more likely to specialize in open-tank systems and the juice that goes in them. The regulations thus target the products that appeal most to minors and the companies that can most easily weather new restrictions on what they sell.

To be sure, it’s not clear the rule will do all that much to combat teen vaping; as many of the stories about the rule note, one survey found that teens are already more likely to get their products from vape shops than from convenience stores. And filling an open-tank system is not exactly rocket science. But making this stuff a little less widely available can’t hurt in this regard, and more important, the new rules won’t stop an adult smoker — or a non-smoking adult who just likes to vape — from using whatever flavor he likes best.

There are a few other important details in the new document, which for arcane reasons presents its rules as “enforcement priorities” rather than as, well, rules. Vaping companies that market their products to kids or fail to prevent access by minors will still be on the hook no matter what those products are.

Oh, and one other thing: This is all just a stopgap measure until the next phase of the vaping war. Trump has promised that the new rule is temporary — and come May 12, the FDA will still be cracking down on any product for which the manufacturer has not submitted an application for FDA approval.

This is a process that dates from the previous administration, whose FDA decided to “deem” vaping products to be tobacco products that fall under the agency’s purview. As I pointed out in The American Conservative at the time, both this decision and the statute it was based on were spectacularly ill-advised: They apply to vaping products and other new innovations, but not to the classic cigarette products that are something about 20 times as dangerous. It is indefensible to set a higher bar for the continued selling of Juul than for the continued selling of Marlboro Reds.

Moreover, the application process is expensive, and it’s not clear how liberally the FDA will approve these requests. As Michael Siegel writes, thanks to the high cost of compliance for small vaping operations that custom-mix flavors,

it will wipe out most of the vaping industry, handing it over to the tobacco companies. The results would be devastating to the public’s health, as many ex-smokers would return to smoking and many more would turn to a new black market for these products.

On the other hand, though, those tobacco companies will presumably sell the most popular flavors in whatever form it’s legal to do so, and the application process is the opening for flavored cartridges to come back, this time with the official government seal of approval.

There’s still a lot of bad stuff going on with the government’s approach, clearly, but it could be much worse. For the time being, the administration has preserved the core promise of vaping: nicotine delivery that’s safer than cigarettes, and tastier too.