Social engineering is not a scientific discipline, but you wouldn’t know that to hear the impresarios of the administrative state talk about the jobs they’ve been trusted to perform. During the pandemic, the institutions ostensibly devoted to the promotion of public health drank deeply from the well of their own sanctimony, and they’ve not yet recovered their senses. If the war the nation’s regulatory apparatuses are waging on nicotine is any indication, that tumultuous period in American history has taught them no lessons.
“I’m torn here,” CNBC host Joe Kernen opened a Thursday interview with former Food and Drug Administration Commissioner Scott Gottlieb. “People want to do what they want to do is one thing.” You can sense the incoming “but” that will invalidate Kernen’s perfunctory nod toward personal liberty. “But,” he inexorably continued, “Nicotine. It doesn’t even do anything for you.”
Because the addictive chemical in question doesn’t impair its users or induce the euphoria common to other intoxicating substances, Kernen judged it an “addiction that you don’t need in the first place.” Why is it, he pondered, that “we don’t get rid of it completely?” His interlocutor, former FDA Director Scott Gottlieb, also offered a rote, passionless statement of support for American freedoms within the bounds of the law. But he didn’t mean it.
Gottlieb was tapped to explain to CNBC’s audience the Food and Drug Administration’s recent efforts to limit Americans’ access to this chemical. That campaign consists of a pincer movement targeting both the nicotine in “combustible tobacco” products (e.g., cigarettes) and the nicotine in devices that involve no combustion and contain no tobacco (personal vaporizers). Conflating these two distinct products, their divergent methods for delivering nicotine to the user, and their distinctive consequences on their users’ health would produce illogical conclusions about their similarities. That helps explain why Gottlieb’s rationale for the FDA’s recent anti-nicotine crusade was incoherent.
Gottlieb observed, accurately, that it’s the “products of combustion,” the particulate and tar in smoke, that cause cancer, “not the nicotine itself.” That’s why the FDA has done its best to make the nicotine-replacement therapies (NRTs) that are owned by pharmaceutical manufacturers broadly available, but also to ensure that vaporizers are regulated like tobacco products so “they weren’t getting into the hands of kids.”
This was not an answer to Kernen’s question, so he asked again. “So, are you in favor of what’s happening now?” he queried. Gottlieb offered a roundabout yes, as far as the agency is following a framework he put in place when he was its chief. “I think the issue with the Juul device is whether or not the FDA is going to consider the legacy of youth addiction with that product and the fact that it was inappropriately marketed to children and became the fulcrum of the youth addiction crisis with vaping,” he concluded.
In sum, this regulatory agency is out for vengeance.
This admission, one that is contrary to the interests of anyone who wants to present themselves as a dispassionate executor of state power, is the most compelling explanation for the FDA’s recent conduct. This isn’t about public health; indeed, the agency’s actions are likely to make individual health outcomes worse. It’s not about corporate propriety; the highly regulated firm that owns and distributes Juul vapes is in compliance with federal law. Moreover, its competitors in this space, which have not suffered the FDA’s wrath, undermine the spirit of this regulatory action. We’re left to conclude that what we’re witnessing is the raw exercise of power for its own sake.
To take Gottlieb’s admission at face value, the FDA has targeted Juul—as opposed to any other personal nicotine vaporizer on the market—because it was and remains popular. This particular vape found itself in the agency’s crosshairs when it came under scrutiny for using marketing practices and producing flavors that were said to appeal to children. In the interim, the FDA has banned fruit flavors for nicotine vape cartridges (not e-liquids or THC products, which are oftentimes sold alongside nicotine vapes in the very same retail outlets). The FDA has been unresponsive to the growing body of peer-reviewed research suggesting commercial vapes are a highly effective smoking-cessation device, but the agency has recognized prescription nicotine inhalers as a valid NRT. And yet, despite this product’s corrective efforts and the dramatic revenue losses it suffered as a result, it is apparently still haunted by its “legacy.”
If you can call this a standard, it is one that would decimate the marketplace if it were applied with any consistency. No one would think to ban cars made by certain carmakers because their products were once unsafe. No one would litigate a grievance against Coca-Cola over its erstwhile distribution of cocaine. There’s no effort to proscribe access to the dependency-forming chemicals in coffee or over-the-counter sleeping pills, though they are harmful in large doses. No one would even think to ban cancer-causing cigarettes. Indeed, the FDA is going after tobacco’s nicotine content, too. In the process, the public health agency will make this already harmful product even more dangerous.
This week, the FDA proposed a new rule that “would establish a maximum nicotine level in cigarettes and certain finished tobacco products.” In theory, reducing the addictive chemical in cigarettes will make the product less habit-forming. But that would also reduce the satisfaction (and the longevity of that effect) experienced by people who do smoke. The perverse practical effect of this rule will be to compel smokers to smoke more, thereby ensuring that they have more exposure to the harmful tars and particulates in smoke than they otherwise would. Pile atop this harebrained scheme an effort to limit nicotine alternatives to those prescribed by a pharmacist, and it seems clear that the ultimate effect of these regulatory efforts will be to force consumers to engage in even more self-destructive behaviors.
The well-intended technocrat may think it is their mission to save the public from themselves. Wouldn’t it be nice if fewer people developed a nicotine addiction in the first place? Of course, it would. But these efforts to nudge the public in the direction of what’s good for them will have depraved effects, most of which will undermine both the objectives of public health officials and trust in the institutions they command.
When you can go into a vape store and buy bubblegum kush-flavored marijuana derivatives but not this one tobacco-flavored nicotine product, and only because the government has a vendetta against its manufacturer, the government has become an engine of hypocrisy. This abuse of the public trust and misuse of authority will have broader implications for the health of the American social compact.