We're mad as hell and we're not going to take it anymore! If you've been vaping for a while, you probably know that the FDA is waging an unnecessary war on the Electronic Nicotine Delivery Systems, or ENDS, industry. We've talked previously about some of the subtle - and not so subtle - ways the FDA is cutting the legs out from under the entire nicotine vaping industry. Beginning with the EVALI outbreak in 2019, the FDA has had the ENDS industry in its crosshairs, just waiting for the chance to take their kill shot.
We've had it. We're done being made out to be the bad guys when all we're trying to do is to help cigarette smokers transition to a product that is unequivocally less harmful to their health. Quitting cigarettes saves lives and we're helping people to do just that, and still we are vilified. That's why, as of July 24, 2023, things have officially gotten real. We're taking our fight to the highest court in the land, to, hopefully, get this whole situation fairly resolved once and for all. Read on for all the details of our filing with the Supreme Court, on behalf of our industry, and on behalf of free Americans everywhere.
The First Step: Taking Down Chevron Deference
On July 24, 2023, an amicus brief was filed with the U.S. Supreme Court by Azim Chowdhurry and Eric Gotting, both from the Keller and Heckman Law Firm. The brief proposed limiting or overturning the Chevron Doctrine, which is a 1980s statute that leaves the interpretation of a law fully to regulatory agencies.
While this may sound harmless, in reality the implementation of Chevron Deference has given regulatory agencies, like the FDA, broad leeway to interpret laws as they see fit. This allows them the power to regulate, going far beyond the plain language of the law.
How Does the Chevron Deference Affect Lawmaking?
The Chevron Deference creates some real problems when it comes to lawmaking. It creates a situation where regulatory agencies, whose job is actually to enforce laws and not create them, can decide what the language of a law actually says , effectively deciding the meaning of a law themselves. This is far beyond their role as a regulatory agency.
This not only bypasses the lawmaking process laid out in the Administrative Procedures Act, or APA, but also makes it more difficult to challenge these actions in court. Essentially, stripping the power of lawmaking from legislators, whose job it is, and giving it to regulators, whose job it is not.
Most people have never heard of the Chevron Deference and have no idea how much it affects lawmaking on a national level. Some agencies, especially the more politicized agencies like the ATF, are able to interpret legal language however they see fit. Agencies like the FDA, ATF, and the EPA are staffed through political appointment, meaning that, instead of being elected by the public, the president appoints the top staff at each of those agencies shortly after they're elected. This creates a potential for each of those agencies to become biased in favor of toeing the part line that appointed them, which is normally not that big of a deal, because these agencies are supposed to simply enforce laws, they don't create them.
The Chevron Deference changes that completely, and gives those politicized agencies way more power than they were ever intended to have, making our laws subject to the whims of political appointees, rather than elected officials. And, while they're not actually writing laws, they have the power to tell us what the written words actually mean, and in many ways, that much more dangerous.
What Does Chevron Deference Mean for the ENDS Industry?
The ENDS industry was created to be a harm reduction alternative to combustible cigarettes with the goal of helping current, adult smokers transition completely off cigarettes. In the years since we established our mission and started making progress towards it, the FDA has decided that we're no better than Big Tobacco and have been slowly legislating the life out of our industry. Simply put, the Chevron Deference is crippling the ENDS industry. And instead of policy makers following the procedural process that's been in place since the Tobacco Control Act (TCA) was introduced, the FDA has, up to this point, been allowed to reinterpret the language of the TCA to fit their agenda. They have effectively implemented a de-facto ban on all non-tobacco flavored ENDS products, effectively crippling our industry.
This decision and its economic impact means that the ENDS industry is struggling to stay alive, and to achieve our goal of helping transition America's smokers off cigarettes. It also means less harm reduction alternatives for people desperately trying to quit smoking.
What Does Chevron Deference Mean for Vapers?
If Chevron Deference remains unchallenged, the future of vaping and the ENDS industry is bleak. The whole landscape of vaping will change, and most likely, many companies will go under, unable to withstand the political and economic pressure. This means less availability and a higher likelihood that former smokers will return to their old habits, simply because they can find the vape that satisfies their cravings the way they need. We already know the impact cigarettes have on our economy, culture, and health, without even going into the dangers of secondhand smoke.
Don't Worry Though, It's Not Over Yet
What's being done to us is wrong! And not just morally. The TCA makes it clear that one of its main goals is to promote public health. Products governed by the TCA must go through a process called a Premarket Tobacco Application (PMTA) to see if the product meets standards to be considered Appropriate for Protection of Public Health, or APPH. The TCA is supposed to carefully review each of these applications individually to assess if a product is APPH.
Instead off of conducting individual review, the FDA has decided to issue broad denials without adhering to the process clearly outlined in the TCA. In short, they're breaking their own rules, and we're all paying the price. Now is the time for us to stand up for ourselves, our freedom, and our health. There's no logical reason why people trying to quit smoking should be denied access to the products that make quitting the easiest. We're ready to take this thing all the way, and are anxious to get this fight underway. Oral arguments before the Supreme Court are scheduled to begin this Fall, and we need all the support we can get, so be sure to check back here for updates as our case progresses.