Senators press FDA tobacco chief on status of vaping ban

Senators press FDA tobacco chief on status of vaping ban
© Greg Nash

Senators from both parties pressed the Trump administration’s top tobacco official on Wednesday for information about the administration’s efforts to remove e-cigarette flavors from the market.

Mitch Zeller, the head of the Food and Drug Administration’s (FDA) Center for Tobacco Products, told members of the Senate Health Committee that the agency is working on an e-cigarette policy, but declined to give more information about when it will be released, what the policy will be, or even if the administration still intends to remove flavors from the marketplace.

When asked by the committee’s ranking member, Sen. Patty MurrayPatricia (Patty) Lynn MurrayGovernment watchdog faults HHS leadership for sustained public health crisis failures No. 3 Senate Democrat says Biden should tap Black woman for Supreme Court Biden's pledge to appoint Black woman back in spotlight amid Breyer retirement MORE (D-Wash.), why Zeller did not mention the so-called flavor ban in his opening remarks, Zeller referred her to the White House.

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“Any questions the committee has about the announcement the White House made ... is best referred to the White House itself,” Zeller said. “I can’t give you a timeline.”

Sen. Tim KaineTimothy (Tim) Michael KaineDemocrats call on Biden administration to ease entry to US for at-risk Afghans Manchin, Sinema join GOP to sink filibuster change for voting bill Desperate Dems signal support for cutting Biden bill down in size MORE (D-Va.) asked if the administration still intends to follow through on its initial promise of clearing the market of unapproved flavors.

“There is no final answer as of now,” Zeller said.

Kaine said Zeller’s answer wasn’t acceptable. 

“You are the person responsible. You should know the answer to this question,” Kaine said. 

Two months ago, President TrumpDonald TrumpMark Walker to stay in North Carolina Senate race Judge lays out schedule for Eastman to speed up records processing for Jan. 6 panel Michael Avenatti cross-examines Stormy Daniels in his own fraud trial MORE and the administration’s top health officials sat in the Oval Office and announced their intent to clear the market of every flavor of e-cigarettes except for tobacco.

At the time, Trump cited a massive spike in teen vaping and the spread of a mysterious illness that has now sickened more than 2,000 people across the country.

Health and Human Services Secretary Alex Azar said after a 30-day effective date, all flavored e-cigarettes would be removed from the market, pending FDA approval. 

But recently, comments from Trump and other administration officials have lawmakers concerned about the delay. 

Officials like White House counselor Kellyanne ConwayKellyanne ConwayKellyanne Conway memoir set for May release Pennsylvania Republican David McCormick launches Senate campaign McCormick drawing support from Trump alumni ahead of Pennsylvania Senate bid MORE as well as Azar, and even Trump himself, have been increasingly trying to draw a distinction between “e-cigarettes” and “vaping.”  

“It’s very important to separate the broader issue of vaping, which is inhaling … THC, CBD or a nicotine product, from e-cigarettes, which is what we can and do regulate,” Azar said during an event Wednesday morning.  

Members of Trump’s reelection campaign have also reportedly been urging him to exempt mint and menthol flavors from any potential flavor ban, and to carve out independent vape shops from regulation as well.

Last week, Trump told reporters he was going to protect jobs, and noted that vaping has become a “pretty big industry.”

“We’re talking about the age, we’re talking about flavors, we’re also talking about keeping people working, and there’s some pretty good aspects,” Trump said. 

During Wednesday’s hearing, Sen. Lisa MurkowskiLisa Ann MurkowskiMcConnell: I'm going to give Biden's Supreme Court nominee 'a fair look' The Hill's Morning Report - Who will replace Justice Breyer? McConnell aims to sidestep GOP drama over Trump MORE (R-Alaska) told Zeller she was disappointed by the mixed signals coming from the administration. Murkowski is a primary sponsor of bipartisan legislation to crack down on flavored e-cigarette products.

“To feel like we’ve made some headway in reducing the availability of these flavors out on the market, but then to have very conflicting signals coming out from the FDA and the White House about whether or not menthol and mint are included in this, is, unfortunately, an escape,” Murkowski said. 

“I don’t think we need to nuance the message here, and I’m just frustrated that we are still arguing over whether or not menthol or mint as a flavor is an attractant to kids. If it makes it taste that much better, they’re going to be attracted to it,” Murkowski added. 

The status of FDA’s rule remains a mystery. 

The White House Office of Management and Budget completed regulatory review of a proposed rule about “electronic nicotine delivery systems” on Nov. 4, and canceled meetings with public health advocates as well as pro-vaping groups. 

But Azar indicated the rule isn’t finished yet, and said Trump is still interested in hearing from all stakeholders.

“What the president is doing now is trying to figure out the right balance” of making sure adults have access to e-cigarettes to help wean them off combustible tobacco, while also preventing children from getting addicted. 

Trump tweeted Monday morning that he plans to meet with representatives of the vaping industry, medical professionals and state representatives to “come up with an acceptable solution to the vaping and e-cigarette dilemma.” 

It’s not clear who was invited to the meeting, and the White House hasn’t given any further information.