Mar 1, 2019

Scoop: FDA chief hands the WH his plan to restrict flavored e-cigs

Gottlieb testifies at a hearing on the opioid crisis. Photo: Drew Angerer/Getty Images

Food and Drug Administration Commissioner Scott Gottlieb has presented senior White House staff with his plan to effectively ban the sale of flavored e-cigarettes in convenience stores throughout the United States, according to two sources familiar with the meeting.

Behind the scenes: Gottlieb met this afternoon in the West Wing with officials from the Domestic Policy Council, the White House counsel's office and the National Economic Council. Joe Grogan, the director of the Domestic Policy Council, arranged the meeting.

Why it matters: Gottlieb has said he regards the wild surge in teen vaping as an “epidemic” and one of the most important public health crises his agency confronts. He is trying to walk a fine line in regulating the industry. He's also described e-cigarettes as useful tools to help adult smokers quit smoking.

  • The FDA announced the substance of this plan in November. The agency has spent the past three months writing the guidance and getting it cleared through the Department of Health and Human Services. Today, Gottlieb briefed the White House for the first time. This is the final step before carrying out the policy.
  • Some prominent Democrats believe Gottlieb has not moved quickly or aggressively enough. At a Wednesday hearing on Capitol Hill, House Appropriations Chairwoman Nita Lowey (D-N.Y.) blamed the FDA’s slowness to regulate e-cigarettes for “the epidemic we face today.”
  • On the other side, conservative groups say Gottlieb is overregulating e-cigarettes and could hurt an industry they believe is helping some people quit smoking.

The details: Gottlieb has foreshadowed a larger plan to reduce smoking rates. But the plan he gave the White House today is only his narrower plan to restrict the sales of flavored e-cigarettes — to keep them away from children and teenagers.

  • How the plan would work: The FDA would stand on shaky legal ground if it imposed an outright ban on the sales of flavored e-cigarettes in convenience stores. But what the agency is doing amounts to an effective ban, with less legal exposure.
  • Under the new FDA enforcement policy, if a store wants to sell flavored e-cigarettes, it has to ask people for the ID cards before they enter the store. (The definition of "flavored" excludes tobacco, mint and menthol flavors.)
  • That means if a gas station wants to sell flavored e-cigarettes, it would need to build a separate room and ask people for their IDs before they enter the room. (It could also come up with other schemes, but would need to verify the age of the shopper before they browse the shelves.)

When we shared our reporting with the FDA, spokeswoman Jennifer Rodriguez emailed: "I can confirm that Dr. Gottlieb was at the White House today, but cannot confirm any details. You’ll need to contact White House for questions about any discussions that may have taken place."

  • A White House spokesman responded: “We don’t have any announcements at this time.”

What’s next: The White House needs to give the green light before the FDA can start enforcing the policy.

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