Saturday, December 12, 2020
Daniel Aaron (Harvard Law School), Tobacco Reborn: The Rise of E-Cigarettes and Regulatory Approaches, 25 Lewis & Clark (2021, Forthcoming):
This paper examines e-cigarettes, FDA-regulated products which heat nicotine-containing fluid into an aerosol to be breathed into the lungs. Recent data show that e-cigarettes are used by about one-fifth of U.S. high schoolers. Given that we have, in the Surgeon General’s words, reached an epidemic of youth e-cigarette use, it is worth asking how a product within FDA jurisdiction became a serious threat to to 3.6 million youth. This article will review the law surrounding e-cigarettes and the history of FDA’s attempts to regulate them. Administrative law doctrines instruct us that increased presidential control will rein in misbehaving agencies by allowing the people to vote out a president who improperly directs the administrative state. However, e-cigarettes present a potent counterexample. On multiple occasions, presidential control over FDA stymied essential tobacco regulations by increasing the influence of the tobacco industry over expert agency policymaking. Yet children harmed by these tobacco policies have no right to vote and little political clout with which to advocate for their interests. Ultimately, the emerging approach to regulating e-cigarettes stands in opposition to a looming historical context and a boiling epidemic of nicotine addiction. By painting the context of e-cigarettes in lush detail, drawing from history, law, medicine, and public health, this article will chart a path forward for e-cigarettes and other addicting products.