Day: May 2, 2014

By The Editors of National Review

The FDA is proposing broad new regulations on the sale of so-called electronic cigarettes, which are devices that provide their users with a jolt of nicotine in the form of vapor. The sole sensible regulation contemplated by the FDA — forbidding sales to minors — is itself superfluous, such sales already being forbidden in every state.

Every state but Oregon, that is. In a strange little twist, the FDA’s proposed regulation may end up enabling the very business it is intended to restrict: Oregon does not specifically prohibit the sale of e-cigarettes to minors (which is probably a legislative oversight) but rather has categorically prohibited the sale of such products until such a time as the FDA should issue regulations.

E-cigarettes are the new Public Enemy No. 1 for anti-tobacco and anti-smoking activists, even though they contain no tobacco and produce no smoke. States and localities have been aggressive about policing the sale and use of them (some, such as New York City, rather too aggressive), but the nation’s self-appointed health police will be satisfied with nothing less than national action against the menace of silly-looking nicotine vaporizers. The health effects of vaporizers relative to cigarettes are the subject of some debate; some doctors suggest them to patients who wish to quit smoking. But the proposed FDA rules go well beyond health and safety concerns. They would prohibit, among other things, the sale of flavored nicotine vaporizing fluids, on the theory that bubblegum-flavored nicotine vapor will act as a gateway drug and our kindergartens soon will be full of toddlers puffing away on Cohibas during recess. This is an example of the FDA’s being confused about its mission, which is to ensure the safety of products that are sold to the public, not to decide which products the public should prefer. Smoking is unhealthy, but it is not the role of the FDA to substitute its own judgment, or the judgment of anti-smoking activists, for private judgment. Likewise, proposed regulations that would ban the offer of free product samples to adults, censor advertisements, and restrict the channels of retail sales are not intended to make the product safer but to discourage its use.

Other proposed FDA regulations, such as requiring manufacturers to register with the federal government and to comply with an onerous federal product-review process, will be quietly welcomed by the larger firms in the industry, because they will help to clear the field of competition from smaller firms that cannot afford the high costs of compliance.

Regulation is generally handled more sensibly at the state and local level, but we federalists and localists must appreciate that some of our states and cities are run by fanatics. On Tuesday of next week, new rules in New York City will ban the use of e-cigarettes wherever smoking is banned — which is effectively every public space in the city short of street corners — even though the traditional health rationale for smoking restrictions does not apply in the case of vaporizers. New York in May will raise the age of majority to 21 as far as tobacco and nicotine products are concerned. The city’s nannies are blissfully immune to the irony that e-cigarettes gained popularity in part as a response to restrictions on traditional tobacco products, including their banishment from bars and restaurants.

The FDA is also proposing regulations on cigars, which the Western world has managed to consume without the oversight of Washington since at least the 15th century.

Nearly three-fourths of the population of this country not only does without smoking but has never smoked, according to the American Lung Association. The campaign of public education about the health effects of smoking has been won and then some. But the nation’s nannies must have a vice to decry, and e-cigarettes give them the vapors.

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