Courts and FDA Interpret Mandate to Regulate Tobacco as Authority to Regulate Non-Tobacco E-Cigarettes
Written by Brian Garst, Posted in The Courts, Criminal Justice & Tort, The Nanny State & A Regulated Society
First the nanny’s attempted to gain control over e-cigarette’s by labeling them as a drug. They got shot down in court, and have now given up that approach. Instead, with the courts blessing, they’ve moved onto the more absurd angle that the tobacco-less products can be regulated as tobacco product:
The Food and Drug Administration said Monday it plans to regulate electronic cigarettes as tobacco products rather than continue trying to classify them as a combined drug and medical device. The agency said it will soon be issuing a proposed rule on e-cigarettes.
Electronic cigarettes vaporize tobacco, along with a chemical compound that includes nicotine, without producing smoke. The government has said the chemicals in e-cigarettes are untested and potentially harmful.
The article above from The Hill is incorrect. E-cigarettes do not “vaporize tobacco,” but rather a nicotine bearing liquid solution.
In some ways this is actually a victory for freedom, as the FDA originally sought to regulate e-cigarette’s under its much more onerous regime on medical devices. It was the court that originally concluded that e-cigarettes are tobacco products (under the reasoning that nicotine is derived from tobacco), and thus subject to regulation under the Family Smoking Prevention and Tobacco Control Act. This prevents the FDA from banning the product as an unapproved pharmaceutical, but still gives it significant authority to ban it through other means.
There is no argument that e-cigarettes can potentially harm anyone but the user, if they are shown even to do that. Thus, in a free society where individuals are able to choose what risk they wish to take, there should be zero impetus for government regulation. But this is a nanny state, where your choices are subject to pre-approval by busybodies who know what is best for you.
I serve as Vice President of the Center for Freedom and Prosperity, a non-profit think tank dedicated to preserving tax competition and free markets. This site features my personal views, which are not reflective of CF&P.