by Niv Sultan
This week, the Justice Department moved to delay enforcement of rules the FDA finalized a year ago dealing with tobacco products like e-cigarettes, cigars and hookah tobacco.
It’s been a busy time for big tobacco, as the victory came on the heels of a defeat for vaping (e-cigarette) companies: Sunday night’s omnibus budget bill reportedly did not include the proposed Cole-Bishop Amendment, which would have eased FDA regulations on e-cigarettes.
“Congress delivered a victory for kids and public health by rejecting the Cole-Bishop Amendment and other proposals to weaken FDA oversight of e-cigarettes and cigars,” wrote Becky Wexler, a spokesperson for the Campaign for Tobacco-Free Kids, in an emailed statement. But Justice’s move for a delay in the rules’ enforcement, she wrote, is potentially dangerous. “The FDA made an overwhelming case for why these products need to be regulated when it issued its final rule last year, and no new facts have emerged to change that.”
Reps. Tom Cole (R-Okla.) and Sanford Bishop (D-Ga.) have also introduced a stand-alone bill, the FDA Deeming Authority Clarification Act of 2017, with the same aims as the amendment. Arguing for the bill, Bishop and Cole have repeated a common talking point of proponents of vaping: That it helps wean smokers off cigarettes.
Unmentioned was the fact that Cole ended the 2016 cycle at No. 10 among the tobacco industry‘s top recipients of campaign contributions, having raked in more than $33,000. Bishop received about half that, $16,000.
Big tobacco’s favorite candidate of 2016 was, by far, Sen. Richard Burr (R-N.C.). As a longtime senator from the nation’s top tobacco-producing state, Burr has been a reliable industry ally and has reaped the benefits; over the course of his two-decade career spanning both the House and the Senate, the tobacco industry has given him more than $689,000.
Nine of the industry’s top 10 congressional recipients in the 2016 cycle were Republicans — and 83 percent of its contributions to candidates and party committees went to the GOP. In fact, the majority of tobacco contributions have consistently gone to Republicans since 1992. Favored Democrats have tended to be those from tobacco country, like Sens. Tim Kaine and Mark Warner — they received about $31,000 and $26,900 in the 2016 cycle, respectively — who both represent Virginia, a premier tobacco-producing state.
Big Tobacco was only modestly on-board with the Trump campaign. Altria Group and Reynolds American, the nation’s largest and second-largest producers of tobacco products, together gave the campaign less than $4,000. They must have had a change of heart after Election Day, though. For Trump’s January inauguration, Reynolds donated a cool $1 million through a subsidiary, while Altria coughed up $500,000.
And the industry has other ties to the new administration: Prior to serving as acting assistant attorney general for the Justice Department’s civil division, Chad Readler represented R.J. Renyolds while working at the law firm Jones Day; and FDA boss Scott Gottlieb used to be on the board of Kure, a vaping company.
Perhaps sensing opportunity, the industry stepped up its lobbying efforts in the first quarter of 2017, spending more than $4.9 million, up about 9.3 percent from the same period in 2016. Altria has already poured $2.3 million into lobbying, and Philip Morris nearly $1.3 million. Both companies have e-cigarette outfits in addition to their more traditional fare; Altria has lobbied on Cole and Bishop’s bill, and Philip Morris on “modified risk” tobacco products — an FDA designation, rooted in the Family Smoking Prevention and Tobacco Control Act of 2009, that could benefit the marketing of vaping offerings, but has yet to be granted to any products. The industry’s lobbying outlays have been relatively modest since it spent nearly $73 million in 1998, the year the Tobacco Master Settlement Agreement was entered. As part of the massive settlement, which regulated how cigarettes are sold and marketed, top cigarette manufacturers agreed to pay 46 states in connection to the costs of treating tobacco-related illnesses.
The era of vaping, like the settlement, has called the tobacco industry’s reputation into question. In 2015, the CDC revealed some startling findings: From 2013 to 2014, e-cigarette use by middle and high school students tripled, and hookah smoking approximately doubled. Kids are smoking both e-cigarettes and hookah at increased rates — though the degree to which that is tied to the availability of flavors like gummy bears is difficult to prove definitively.
Still, if ever there was a time for the industry to feel optimistic about getting some relief in Washington, this would seem to be it, with control of both Congress and the White House in GOP hands. The Justice Department’s stalling of FDA tobacco product regulations may be a sign of more good things to come — as far as big tobacco is concerned.
“[O]ur hope is that the Trump administration dismantles this rule, as it is utterly unworkable in its current form,” wrote Gregory Conley, president of the American Vaping Association, which describes itself as a public health advocacy group, in an emailed statement. He added that it was unclear whether the measure was being re-evaluated or the administration was simply understaffed and needed more time.
But lest vaping supporters feel doubtful about their chances on the Hill, there’s another piece of legislation on the table (along with Cole and Bishop’s bill). Last week, Rep. Duncan Hunter (R-Calif.) introduced the Cigarette Smoking Reduction and Electronic Vapor Alternatives Act of 2017, a bill that would relax the FDA’s approval process for e-cigarettes.
Hunter received more than $16,500 from tobacco PACs in the 2016 cycle.