by Bob Barr
Despite the requirement in Article I Section 8 of the Constitution that only the Congress has the power to “declare war,” the FDA (Food and Drug Administration), an agency of the Executive Branch, has been engaged for more than half a century in an all-out war on what it obviously considers the most dangerous foe on Earth – tobacco. FDA war lords now are launching an all-out assault on “flavored” tobacco products.
If successful, this effort will drive from retail shelves across America virtually every pipe tobacco product, menthol-flavored cigarettes and flavored cigars, along with any other product that combines tobacco and flavoring agents.
And even that result will not be sufficient victory for the desk-bound generals at FDA. These bureaucratic nannies consider e-cigarettes to be “tobacco,” notwithstanding they contain nary a scintilla of tobacco. Therefore vaping products, which come in a wide variety of flavors, would be crushed out of legal existence if a regulatory edict now under consideration by FDA is permitted to become final.
The early battles waged by the FDA against tobacco were based on legislation passed in the late 1960s and early 1970s, and targeted cigarettes as public enemy number one. However, during the two-year window from 2009 to 2010 when Democrats controlled both houses of Congress and the White House, the agency was given what it had long coveted – legislative power to go after premium cigars, flavored tobacco products, and e-cigarettes (commonly referred to as “vaping”).
Now, armed with the regulatory power to dismantle these other industries the same way it has attacked the cigarette industry, the FDA is girding for its final battle against the scourge of products that individuals enjoy by breathing in smoke or vapor.
Unless Congress or the President step in and stop the FDA nanny warriors from their scorched-earth drive against premium cigars, flavored cigarettes and cigars, and tobacco-free flavored vaping, these products will go the way of Kinder Surprise and lawn darts– available only on the black market.
It is hardly surprising that former President Barack Obama and his cohorts who controlled the Congress for the first two years of his administration, sparked the FDA’s multi-pronged drive to rid the country of all things tobacco. Harder to comprehend, however, is the fact that the Trump Administration, with a Congress led not by Democrats but by the GOP, appears willing to allow the FDA to continue its crusade.
At this point, it is not clear whether the somnambulant Congress and the Trump Administration actually support the FDA’s war against the vaping and flavored tobacco industries, or if they simply have too many other matters on their minds. The Administration did extend the deadline for public comment on the FDA’s draconian regulatory proposal for an extra month, to late July. But this is but a very minor delay in what will – if not stopped – result in the death of businesses large and small that simply produce or market a lawful product.
The vaping industry, which has mushroomed into a multi-billion dollar industry in the United States and worldwide, and has been shown demonstrably to wean smokers off cigarettes, stands to be hit hard by the new regulations; as will flavored cigar manufacturers like Florida-based Swisher Sweets.
It is the “collateral damage” that would hit hundreds of small, “Mom and Pop” tobacco and vaping business in towns large and small across America, however, which makes the FDA’s actions especially appalling and heart-rending.
One very real victim of the FDA’s ire will be Uhle’s Tobacco Co. in Milwaukee, Wisconsin. Uhle’s is a small but successful purveyor of pipe tobacco and cigars, dating back to 1939. Its only patrons are adults who enjoy purchasing and smoking pipe tobacco and cigars from a business with an excellent reputation and knowledgeable staff. But the company’s unforgivable sin in the eyes of the FDA is selling “flavored” tobacco products. If the FDA proposed regulation becomes final, Uhle’s dies.
President Trump has used his pardon power wisely and appropriately to correct past errors by our legal system that have victimized several individuals. He could perform a real service to the country, and to law-abiding businesses large and small, by stopping the draconian and hateful FDA “flavored” tobacco regulations. The Congress should wake up, realize what is going on, and cut off funding for the FDA effort.
It is time to stop this regulatory madness.