Expert: Trump EOs Set ‘Strong Basis’ For Lawsuits Over FDA Vape Ban

October 11, 2019

Conservative advocacy group Americans for Tax Reform says the White House’s executive orders that aim to rein in agency regulations could provide a “strong basis” for federal lawsuits against FDA and HHS should the agencies move forward with a ban on flavored vaping products, which is expected to be implemented through guidance within weeks.

However, the group would prefer the Trump administration press pause on the guidance before it’s released. The group argues the ban runs counter to the administration’s efforts to increase transparency in regulations and decrease regulatory burden, especially on small businesses, an issue the White House highlighted this week.

On Wednesday (Oct. 9), President Donald Trump signed two executive orders that aim to make federal regulations easily accessible by the public and set up a requirement that agencies must allow individuals affected by planned regulation to contest the guidance.

In an op-ed on FoxNews.com, and later during the executive order signing event, a White House official and Trump specifically highlighted regulations issued by agencies such as the Environmental Protection Agency and Department of Labor that have resulted in small businesses being penalized for non-compliance.

Americans for Tax Reform, which opposes Trump-directed ban on flavored vaping products, and consumer advocacy organization Public Citizen, which supports the ban, have both highlighted that the executive orders could allow for industry to contest the future flavor ban guidance.

Specifically, a representative from Public Citizen previously told IHP he’s concerned that the requirement that agencies must let affected parties contest guidance documents will stall the ban.

Paul Blair, director of strategic initiatives for Americans for Tax Reform, also said the executive orders provide a strong basis for federal lawsuits against FDA should the agency move forward with implementing the ban through guidance, rather than rulemaking.

“The FDA isn't taking flavored products off the market via rule-making; they’re doing it via guidance threats that say if you don’t get FDA approval first, all of your products are illegal. It’s absurd,” he wrote in an email to IHP.

But an even bigger issue, according to Blair, is that it seems no one in the White House is “competently connecting the dots” between the flavor ban and Trump’s opposition to so-called dark regulations that are implemented through guidance.

“It’s incomprehensible that the President can continue to opine on the problems associated with bureaucratic guidance that takes the place of rule-making and yet green-light that same guidance when it comes to the regulation of life-saving products in a multi-billion dollar industry being threatened by the FDA,” the Americans for Tax Reform official said.

The administration can’t say that guidance is bad but only mean that in the context of environmental regulations, Blair added.

“You have to be consistent across agencies and departments or you’re simply picking winners and losers like every other discredited traditional swamp politician throughout history,” he said. “Trump is better than this, or at least I thought he was.”

Blair, who argued that the flavor ban would immediately kill more than 100,000 jobs and “destroy” more than 10,000 small businesses, said if Trump is serious about slowing down regulations then he should immediately halt FDA’s proposed flavor ban and require the agency to ask for public input. -- Beth Wang (bwang@iwpnews.com)