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In his fantastic talk at #GTNF2022, esteemed legal scholar @jadler1969 takes on the FDA’s many failings on vaping policy. Let’s look at some highlights. 🪡
First up, he talks about the agency’s fumbling of the PMTA process:
Adler also provides the receipts on how the FDA and CDC’s negligent messaging directly contributed to dangerous misperceptions about vaping – which started *before* the EVALI screw up:
It’s not surprising the public has been misled about the benefits of vaping. That’s because, as Adler points out, the FDA completely forbids companies from talking about how vaping is safer than combustible cigarettes.
It gets even worse. Vaping companies can’t legally repeat what FDA said at this very conference!.
“Producers of electronic cigarettes can’t quote things that Brian King said here yesterday [ . . .] that are indisputably factually true.”
Finally, Adler explains why these rules would violate the First Amendment and SCOTUS precedent:
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🥊This is one of the most hard-hitting legal filings we've ever seen in vape advocacy. Just delivered to the U.S. Supreme Court on behalf of Florida vape maker Johnny Copper by @vapelawguy. 1/ theavm.org/s/Motion-for-S…
Not only could this filing help color the way that the justices will confer on the White Lion v. FDA case that is currently pending at SCOTUS, it cuts right to the heart of the matter.
As we say in the High Plains, this is the whole shooting match.
Doctors routinely mislead smokers about the benefits of vaping. How do we know? A member of our team was just subjected to a misinfo-laden lecture during a doctor's appointment. Let's dissect some of the myths health care providers are passing off as medical advice. THREAD 🧵
The "information" sheet we were given after the appointment (pictured above) was produced by academic publishing giant @ElsevierConnect, and it's an absolute train wreck. It's also more than two years out of date.
The first and worst bit of nonsense in the document is that nicotine is "thought to" increase your cancer risk. Exactly who thinks this and why isn't explained.
🔎⚖️ Solid forecast just posted on the legal undercurrents at issue before the Supreme Court in the upcoming Triton v. FDA case. tobaccoreporter.com/2024/09/09/vap…
Features incisive analysis from our @GregTHR.
Also quotes US Solicitor General, Elizabeth Prelogar. NB: If she ends up arguing the case at SCOTUS herself, we'll take it as a sign the government has confidence in FDA's actions and is sending in their ace pitcher. OTOH, her absence *could* indicate FDA is on shaky stilts.
🔎 Let's talk for a minute about why the Supreme Court amicus brief from Sen. Dick Durbin might actually be a good thing. It's because Durbin's fanaticism and hyperbole are on such lurid display that it'll give the Court a clear sense of just who's pushing vape prohibition.
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The first thing SCOTUS law clerks will notice is the Durbin brief is strictly partisan -- all the signatories are part of Durbin's particular wing of the Democratic party. On political issues, that's fine -- but in this context it signals there's no unanimity, as Durbin pretends.
The Court will also see that Durbin is not deploying measured persuasion but instead the most hyperbolic rhetoric he can dream up.
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We need to talk about the debacle of 22nd Century's bet on low-nicotine cigarettes -- not only as an asinine business model but what the implosion says about @FDATobacco and the news media that covers nicotine policy. 1/ 🪡
Here is the company's stock chart for the last year and it's a complete wipeout. It's hard to overstate just how bad this is -- but if you invested in this company, you have basically lost your shirt.
But there was once a time, not long ago, when this stock was flying high -- selling for more than $1,200 per share with a market cap of nearly a billion dollars! What explains that? Why were investors flocking to this company?
By granting cert in the Triton case, the Supreme Court is now poised to rebuke @FDATobacco's unlawful and destructive vape regulatory scheme. But readers of the New York Times and Wall Street Journal, the nation's two biggest papers, would have no idea. They didn't cover it.
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It's not like these papers don't obsess over SCOTUS / FDA. They've each got scores of stories in just the last few days, including this one on Loper fretting how the agency's "critics" (read: the American people) may confront the agency. (Shut up and eat your spinach, peasants!)
@By_CJewett even indulged Mitch Zeller whining that he can no longer rig the system for his friends. (Unmentioned: Zeller was the architect of the ban on flavored vapes that now has the agency facing an epic defenestration. Cheer up, Mitch, you're about to make history!)