Public health and the economy be damned.
By Eli Lehrer
If Congress has any self-respect or desire to preserve its own prerogatives, it needs to overturn the FDA’s new proposed regulations on e-cigarettes.
The regulations, announced last week, would amount to a de facto prohibition on all of the currently marketed potentially lifesaving alternative to combustible, disease-causing cigarettes. They are worth opposing on public health grounds alone. But members of Congress—even those who want an all out ban on e-cigarettes—should also oppose them in their current form because they’re such a blatant example of regulators asserting powers that ought to belong to Congress. Indeed, a Congress that can’t figure out a way to reassert its own authority over these regulations will have a very hard time asserting that it’s serious about any regulatory oversight of the executive branch at all.
The proposed e-cigarette regulations would do something that almost never happens: end a productive, profitable, currently legal industry overnight by regulatory fiat. Tens of thousands of people employed in vape shops, manufacturing, and marketing e-cigarettes would be thrown out of work almost immediately if the regulations go into force. Even if e-cigarettes were a net public danger (and they’re not), the significant immediate economic impact of the regulations suggests that they’re something Congress should weigh in on itself.
Indeed, it’s hard to think of a more pressing case for Congress to have some say over a regulation. While it’s a common applause line for free-market politicians to promise an end to “job-killing regulations” and promise that new jobs will emerge immediately if government shackles are simply removed from the economy, the relationship between the regulatory state and employment is actually pretty nuanced. Employers, survey after survey shows, almost never lay off existing employees because of new regulations. Only .5 of one percent of all layoffs are directly related to regulations, according to the Bureau of Labor Statistics. Instead, the cumulative weight of regulations tends to make certain ways of doing business unprofitable in the long run. The largest employment impact of new regulations may well be on jobs that are never created in the first place. Furthermore, very burdensome regulations can protect existing jobs at large incumbent companies by making it harder for disruptive entrepreneurs to enter existing markets. Since the impact of regulations is often ephemeral and relatively minor, Congress properly cedes certain minor responsibilities to regulators.
But regulations that cause large, visible and predictable changes are exactly the places where Congress ought to step in; the regulations feel like lawmaking and have direct, visible impacts that even more costly environmental regulations might not. If there’s to be a major change in the society we deal with a legal and widely used product, the very concept of representative democracy alone indicates that Congress should have hearings, hold debates and weigh the evidence. If e-cigarettes are as dangerous and problematic as their opponents say, then the current regulations—which would still allow e-cigarettes to be marketed after an long and costly review process that only big companies could afford—then members of Congress should ban them outright. If the regulations are a net negative for public health, as most existing evidence indicates they are, then Congress has an obligation to either delay their implementation or write special new laws.
The FDA’s e-cigarette rules, in short, aren’t just a bad idea for public health. They’re also bad for representative democracy and the power of our legislative branch. Congress needs to step in.