CEI E-Cigarette Lawsuit Takes on Activist Agencies

By Michelle Minton

(Competitive Enterprise Institute)

The battle over electronic cigarettes heats up even more this week as the Competitive Enterprise Institute’s general counsel Sam Kazman argued in court today against a federal regulation banning use of electronic cigarettes on planes. The lawsuit, filed by CEI and the Consumer Advocates for Smoke-Free Alternatives Association (CASAA), says the Department of Transportation overstepped its authority when it decided to prohibit vaping on all airplanes. People may think health concerns must have spurred the regulator crackdown, but that is contrary to all the scientific evidence showing that vaping is relatively safe in the short term and certainly less harmful than smoking traditional cigarettes.

Until the DOT decided to ban the use of vapes on a plane (alleging that vaping counts as smoking), airlines were fully able to prohibit their use and most did. However, in March 2016, the agency decided to impose a new prohibition under Congress’s anti-smoking airlines statute. The agency did this despite the fact the DOT itself admitted five years earlier that e-cigarettes neither burn tobacco nor produce smoke and without providing evidence of harm to passengers.

So, if the ban wasn’t necessary, why did they do it? Sure, the sometimes fragrant vapor and a fear of unknown risks might make fellow passengers uncomfortable. It’s possible this is why most airlines voluntarily barred vaping on planes already. But I would argue that the motivation of regulators has nothing to do with protecting airline passengers’ health and more to do with scaring consumers away from vaping.

Despite the fact that almost every single study to look at the actual health effects of vaping has found them to be much less harmful than traditional cigarettes, advocates—in and outside of the government—want Americans to think they are just as deadly as regular cigarettes, which kill upwards of half their users.

In 2016 the Food and Drug Administration (FDA) deemed electronic cigarettes tobacco products, putting them under the same onerous pre-market approval requirements as traditional cigarettes, despite the fact that e-cigarettes contain no tobacco. By the FDA’s own admission, this will eliminate around 98 percent of the existing e-cigarettes on the market.

Most recently, as I wrote, the Surgeon General’s office released its first report on vapes, calling the products “a public health threat” and urging an increase in “evidence-based messages about the health risks of e-cigarette use.”

Much of this fear seems to stem from the overly-precautionary approach taken by many health agencies. They can’t get in trouble for what they don’t permit in the first place, right? And, many health advocates and activists do their part to stoke fears. Some anti-smoking researchers have been trying desperately to find any evidence for possible long-term risks associated with vaping. But these efforts are far from “evidence based.” For example, a recent study found that vaping caused temporary arterial stiffness and has been used by many—including researchers who know better—to say that vaping is “as bad for the heart as cigarettes.” Yet, the study merely demonstrated what scientists already knew; that nicotine causes arterial stiffness, just as caffeine, exercise, and even stress do. Arterial stiffness, in and of itself, does not increase the chances of developing cardiovascular disease. Yet, even the study’s authors are intentionally trying to spread this misconception.

When most airlines already banned vaping on planes for the comfort of their passengers, why would DOT feel the need to step in and—without authority—force that decision on all airlines? Are they trying to stoke consumer fears about the second-hand effect of vaping and trying to further connect vapes with traditional cigarettes? While their motives might be good (if they genuinely believe vaping has risks) the effects will almost certainly be extremely unhelpful should they succeed.

Nicotine itself appears to be relatively harmless, or at least, no more harmful than caffeine. However, as our government’s agencies scare consumers off of vaping and eliminate the incentives current smokers have to switch from cigarettes to e-cigarettes, the more people will continue their deadly smoking habit and the more of them will die. DOT, the FDA, and the Surgeon General ought to keep their noses out of this and let scientists, private businesses, and consumers make up their own minds about the risks and benefits of switching to e-cigarettes.

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