The Trump administration is under fire from conservative groups and some GOP lawmakers, who are pushing back over its planned crackdown on e-cigarette flavors.
They say the administration is overreaching, and the flavor ban will harm small businesses, a violation of core Republican free market principles.
But so far, President Trump has shown he will listen to his health advisers, who say that sweeping the market of all flavors except tobacco is the best way to cut down on an epidemic of youth vaping.
Lawmakers from both parties initially applauded when Trump and federal health officials made the announcement last month to restrict the sale of all nontobacco flavors of e-cigarettes. Trump cited a massive spike in teen vaping and the spread of a mysterious illness that has now sickened more than one thousand people across the country, and killed at least 18.
But the scope of the administration’s plans has some of its staunchest allies crying foul.
“It would be disastrous. Maybe not for the big guys who sell e-cigarettes like Juul, but for the more than 10,000 independent retailers whose sole business model is the sale of these products — these are the guys that would be put out of business overnight,” said Paul Blair, director of strategic initiatives at Americans for Tax Reform (ATR).
“I think that there are different perspectives within the White House on this issue for people that look at it through a political lens versus those that look at it from a regulatory and policy lens,” Blair said.
ATR was one of dozens of conservative groups to send a letter to Trump this week, urging him to abandon the plan.
“Eliminating all but one or two of these options for adults would destroy thousands of small businesses, force many adult vapers to return to smoking, and force some to seek out products on the black market,” the groups wrote.
Some Republicans are also concerned about the economic effect of the administration’s actions. Speaking to a tobacco industry conference in Washington last week, Sen. Richard Burr (R-N.C.) warned about eliminating menthol and mint flavors.
Menthol cigarettes remain on the market, and Burr said he has not seen previous administrations attempt to ban them since he has been in Congress.
“We believed that an adult could go in and have the option … to move from combustible cigarettes to e-cigarettes, and they would have a similar choice [of flavors],” Burr said, while adding that a flavor like bubblegum should not be available.
“But … why would we limit a product they have become accustomed to?” Burr said. “That’s the proposal that’s been laid out and in the frenzy Washington has created, we have states like Massachusetts and others that are considering a total ban on an issue where they have absolutely zero facts to make a conclusion.”
Administration officials have said the planned crackdown will merely enforce the existing law requiring companies to submit their products for review by the Food and Drug Administration.
“FDA is not banning flavors. Rather FDA intends to enforce existing law,” the agency’s acting commissioner Ned Sharpless said during a House Energy and Commerce Committee hearing late last month.
Companies have until May 2020 to submit their products for review, but in the meantime, the administration wants to remove from the market all flavored e-cigarettes — except tobacco — until they can be proven safe.
“It is important to note that this does not mean flavored e-cigarettes can never be marketed—if companies think they can show that specific products meet the standards established by Congress, then FDA would authorize that product for sale,” Sharpless said.
Marc Schenison, a partner at Alston & Bird and former associate commissioner at FDA under President George W. Bush, said he thinks the administration is bowing to political pressure to ban all vaping products, not just marijuana.
Officials should be focusing their efforts on the illegal products containing THC — the psychoactive compound in cannabis — that are making people sick, rather than legal flavors like mint and menthol, he said.
Most of the patients suffering from a lung illness linked to vaping products who have been interviewed by health officials said they had vaped THC with or without nicotine products.
Schenison, who advises small tobacco companies, said FDA has the authority to seize illegal vaping cartridges.
“Is this [ban] justified when science is showing legitimate companies have products that are successful in eliminating [combustible cigarette] use?” Schenison said. “THC is a controlled substance, an illegal drug. Why isn’t FDA working with law enforcement to close down shops based on the people who are sick?”
But stopping those illegal products is not easy.
A study released last week showed some patients in Illinois and Wisconsin became sick after vaping THC products sold under the brand name “Dank Vapes,” which does not appear to be a legitimate manufacturer.
Most of the patients also reported getting their products off the street or from friends and family.
On Friday, the FDA warned consumers to stop using any vaping products containing THC. The agency stressed it’s still unknown if the illnesses are caused by THC, nicotine or any number of the chemicals that are often found in vape liquids.
Jessie Hellmann contributed