Earlier this week a response from the FDA was published which suggests that the FDA does not fully understand its own authority. Dr. Michael Siegel submitted a question requesting clarification on regulation of non-nicotine or non-tobacco nicotine. The FDA’s response claims that these products would be regulated; however, we know that the FDA does not have legal authority to do so.
Here’s a snippet of the published response written on The National Review by Jared Meyer:
“The Food and Drug Administration just made it clear that it cannot tell the difference between eggplants and tobacco leaves. It has assumed control over nicotine that does not come from tobacco but rather is derived from vegetables or created in labs. This development is part of the continued fallout over the FDA’s 499-page “deeming regs,” which brought e-cigarettes, e-liquid, and devices used for vaping under its tobacco-control authority.
Boston University professor Michael Siegel submitted a question to the FDA that simply asked: “Are e-cigs that do not contain nicotine (or any other tobacco extracts) also covered by the FDA deeming regulations? If so, will they also require pre-market approval like products that do contain nicotine?”
In a drawn-out response posted July 25, the FDA wrote that it does indeed have regulatory power over e-liquid that is not derived from tobacco. This attempts to clarify the FDA’s regulations, but all it does is reiterate that the FDA is waging a war on both orally inhaled nicotine and nicotine-free e-liquid — not tobacco.
“There are major problems with the FDA’s power grab. If Congress wanted the FDA to have control of all products that contain nicotine, it would have spelled that out in law. Instead, Congress limited the purview of the Family Smoking Prevention and Tobacco Control Act to tobacco and smoking. Simply put, Congress did not grant the FDA the power to regulate any substance that contains nicotine as a tobacco product.
As if the FDA’s unauthorized extension of its regulatory authority to non-tobacco-derived nicotine was not enough, it also claims it can regulate e-liquid that does not contain any nicotine — which is the most common type of e-liquid used by teenagers.
“If the FDA’s main concern is public health, it desperately needs to learn the difference between smoking and vaping — and the difference between tobacco and eggplants.”