Prohibition is a tough pill to swallow. When a regulatory framework advances to the point that a certain type of behavior or product must be prohibited, the outcomes almost always fail.
The temperance movements in the United States and the prohibition of alcohol during the early twentieth century provides a blueprint to how paternal policy amplifies the law of unintended consequences.
During the push to prohibit substance abuse during the earlier years of the last century, the politics of prohibition amplified prejudices against many marginalized communities. This also is the case for the broader population that drank alcohol for the sake of community or to cope with the hardships of the time.
Modern-day prohibitions against drug use are no different in developing similar issues. Currently, we are in the midst of a regulatory trend that directly harms the survival of businesses and people from all walks of life and socio-economic backgrounds.
Oregon joins the pack
Oregon is the latest state in the United States to ban the sale of all flavored vaping products through executive action. Joining the ranks of governors from Michigan, Massachusetts, New York, Washington, and Rhode Island, Gov. Kate Brown announced the flavor ban citing the usual suspects: vaping-related illnesses and a teen use epidemic.
Oregon is one of 48 states to be inflicted by several cases related to a rash of vaping-related lung injuries. By current counts, the Centers for Disease Control and Prevention’s (CDC) own data shows that the total number of cases has exceeded 1,000, with roughly 18 deaths. CDC suggests that 4 out of 5 of every case, among the entire population, have been tied to illicit and regulated but contaminated THC vaping with nicotine or only cannabis-derived liquids.
In Oregon alone, the Oregon Health Authority reports that about 8 cases and at least 2 deaths. Not to mention, Brown found that the rate of use of e-cigarettes among youth was alarming to her administration.
“My first priority is to safeguard the health of all Oregonians,” said Brown. “By keeping potentially unsafe products off of store shelves and out of the hands of Oregon’s children and youth, we prevent exposing more people to potentially dangerous chemical compounds and help lessen the chance of further tragedy for any other Oregon family.”
According to Brown’s official declaration, the ban covers all flavored vaping products that contain nicotine, THC, and CBD for a length of six months. Brown additionally maintains the right to renew the ban for another timeframe, provided no legislation is passed or signed into law banning flavors permanently.
The same agenda
The flavor ban in Michigan, implemented by Gov. Gretchen Whitmer, is structured similarly. Six months, and the need for an extension through executive action.
Through the executive action structure, these bans—regardless of jurisdiction and method of implementation—are limited by time under most state statutes of limitation and limitations within the exercising of specific public health powers.
Despite the fact that the temporary ban in New York is currently on hold due to litigation brought by the Vapor Technology Association, Gov. Andrew Cuomo’s ban is for a limited time. Also, this is the case for bans implemented by Gov. Charlie Baker of Massachusetts and Gov. Jay Inslee of Washington.
“Temporary” is the keyword for these bans. I pondered the term and how it is a form of doublespeak, meaning that the term has two meanings, in this case.
The Los Angeles Times reported earlier this week that the Obama administration declined to ban flavors, citing the economic impact of a mass exodus of vaping products from the market. The previous administration, though one of the chief proponents for the strict tobacco regulatory advanced under the Tobacco Control Act of 2009, essentially made the right call to delay any adverse policy implications.
It is also true that the Obama administration predicted the potential for a youth vaping epidemic. Former Surgeon General Vivek Murthy and the Obama-era Food and Drug Administration (FDA) were adamant to remove flavors from the market. Luckily, the logic had by Obama’s economic advisors prevented any rash market failure linked to regulations.
“Temporary” never means temporary
With this context, consider the nature of “temporary,” as I mentioned.
Acting FDA commissioner Norman Sharpless recently testified before Congress that the administration is not necessarily banning flavored e-cigarette products nationwide.
Despite President Donald Trump’s rhetoric, Sharpless announced that flavors can return to the market if product approvals are made through the PMTA pathway. However, per the coming PMTA deadline, public health regulators are preparing for a mass exodus for thousands of brands; private labels or mass-produced.
“FDA is not banning flavors,” he told Congress in written testimony. “This policy would not mean that flavored e-cigarettes could never be marketed. If a company can show through an application to FDA that a specific product meets the standard set forth by Congress, then the FDA would authorize that ENDS product for sale.”
Sharpless essentially testified that the “flavor ban” is only temporary, or at least existing prohibition policy. One question remains: How do regulators expect small and medium-sized companies to survive such policy environments?
Per the FDA’s proposed compliance policy up for public comment that was recently released, the cost estimations are in the millions. Small and medium-sized companies are unlikely to afford the process without risking the survival of their businesses. The cost effective option to many would to exit the market and shut down.
Many of the temporary bans are similarly structured. When San Francisco became the first city to completely ban e-cigarettes, the city’s lawmakers assured that the total prohibition will only last until the FDA approves vaping products for the market.
To overturn the ban, Juul Labs backed a ballot initiative, Proposition C, that would repeal the total ban and institute a regulatory framework for legal vaping products within city limits. Prop. C was receiving the momentum it needed to pass this November, but, the public backlash from health regulators and anti-vaping politicians prompted an aggressive reaction.
CEO Kevin Burns was then ousted, and his replacement, Altria’s K.C. Crosthwaite ordered the company to draw down all of its lobbying and advocacy efforts. Juul, being the chief financier of Prop. C by nature killed the only effort to overturn the “temporary” ban.
No lessons learned
The PMTA regulatory pathway, the executive actions to prohibit product access, and Juul’s ouster from Prop. C all carry with them the designs to make a ban permanent. Temporary, in all of these cases, never means temporary.
“There is every reason to believe that those interested in “temporary” bans will do everything in their power to make them permanent and more expansive over time,” writes Michelle Minton, a senior fellow at the conservative-leaning Competitive Enterprise Institute out of Washington, D.C., in agreement with me.
Minton adds: “We have seen this, for example, with those pushing for flavor-bans. They began by only targeting supposedly kid-friendly flavors, leaving mint, menthol, and tobacco alone. But over the last month or so we have seen a concerted effort to include mint and menthol in these flavor bans.”
A similar structure of events could be seen internationally. Israel is one case to consider. When Juul broke into the Israeli market some time ago, the country’s Ministry of Health (MOH) became alarmed at the high percentage of nicotine by liquid weight and found concern with the sweet-flavors. MOH moved to ban the sale and import of Juul e-cigarettes in 2018, additionally issuing stricter rules on vaping products and other smoke-free inhalants.
The Times of Israel reported last month that MOH has now moved to prohibit all e-cigarette products through a temporary injunction. This means that the cabinet agency has issued temporary prohibitions, waiting for Israel’s national legislature, the 120-seat Knesset, to pass new legislation.
Granted; this case is specific to Israel. But, product prohibition will become permanent through legislation because of the temporary origins of initial policies.
For these cases, “temporary” never means temporary.
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