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Mr. Lik Goes to Washington, Chapter 2

Last week's big vaping news on the American congressional front was a letter to the FDA from the leaders of the Republican-dominated House of Representatives, appealing for a updated “grandfather date” for vaping products. This is the date after which new products have to apply for certification of “substantial equivalence” with an existing product (in other words, a product already approved before said date, in this case 2007).

This week, three Democratic Congresspersons, Dick Durbin, a Senator from Illinois; Frank Pallone, Jr., a Representative from New Jersey; and retiring Representative Henry Waxman from California, have countered this appeal with a letter to a number of state Attorneys General, asking for electronic cigarettes to be declared “cigarettes” under the Master Settlement Agreement. This was the deal cut in 1996-7 between Big Tobacco and a number of American states, requiring cigarette companies to pay reparations for harm caused to citizens by the poison manufacturers' fraudulent and rapacious practices.

For those international vapers fortunate enough to remain ignorant of the vagaries of “la politique yanquis”, a bit of background would be helpful. Republicans (the “right wing”) are considered to be the proponents of Big Business, while Democrats (the “left wing”) are touted as advocates of progressive reform and consequent restrictions on business practices. This produces a natural alignment of Democrats with smoking-ban activists, and hence with vape-bashers, and a natural alignment of Republicans with manufacturers of all kinds, hence with makers of tobacco products, both the poisonous and the non-poisonous kinds.

One suspects that the politicians on both sides of the fray are ignoring the most important distinction in the vaping industry. On the one hand we have e-cigarettes produced by the independent companies that had been building a thriving industry for 5 years, despite Big Tobacco opposition, before the cigarette industry changed its plan and muscled in on that industry, using its deep pockets to buy easy market dominance. And on the other hand we have the e-cigs marketed by Big Tobacco for the past 2 and one half years. The former industry segment wants to use e-cigs to “obsolete smoking” (in the words of Craig Weiss of NJOY), while the latter wants to use them to keep it alive (as pointed out by scholars at the Schroeder Institute), so while they both make e-cigarettes, they make them for diametrically opposite reasons.

Lefties (Democrats, smoking-ban activists) tend to say that vaping is nothing more than a trick by Big Tobacco to hook people on nicotine again, ignoring the first five years of the industry and community. Right wingers (Republicans, pro-business advocates) also ignore the distinction – business is business, and it should all be supported. And it's an issue of personal freedom as well, another issue beloved by the right.

Some prominent vaping advocates are fellows of right-wing oriented think tanks, but they are very sensitive to the distinction between Big Tobacco's vapes and independent ones, in a way that politicians on either side are not.

The Master Settlement Agreement is an especially bad vehicle for decision making on this issue. It was a product of a lawsuit by a coalition of state governments against Big Tobacco, before vaping in its current form had even been invented. It penalized cigarette companies for documented harm, while no one has yet proven any harm from vaping products. The MSA restricted advertising and marketing, and the reparations it required were earmarked for anti-smoking campaigns in large part. The financial details were administered in part by the sale of bonds, with dividend amounts to be linked to shipments of cigarettes from manufacturers to marketing outlets. It was assumed that cigarette shipments would decline at a rate of 3%/year, but since cigarette sales are declining at a rate faster than that, there is some talk of default on those bonds. Thus for a variety of reasons the MSA is a singularly inappropriate standard for any enactments regarding vaping devices.

The Congressmen are "asking state attorneys general to violate both the Constitution and their own state laws,” according to Greg Conley, President of the American Vaping Association. “State attorneys general have no power to force e-cigarette companies to become parties to a voluntary agreement.... E-cigarettes did not even exist at the time the MSA was signed,” he goes on.

"Even ignoring the legal flaws,” says Conley “capturing e-cigarettes under the MSA would be the wrong thing to do. Deceptive, fraudulent, and costly behaviors by cigarette companies were the impetus for the MSA. Vapor product companies are guilty of none of the cigarette industry's past sins.”

Conley's statement ends on a rueful note: "For much of his decades-long tenure in Congress, Rep. Waxman has been known for fighting against cigarette companies. It's sad that one of his last acts as a Congressman is to push rules that would actually protect cigarette company revenues."