Recent reports from The New York Times and Axios confirm that Trump openly voiced his regret of getting involved with the federal government’s vaping policy.
The Axios report found that Trump said that he should have “never have done that fucking vaping thing,” in an impromptu phone conversation with Alex Azar, Trump’s appointed secretary over the Department of Health and Human Services (HHS).
Trump merely said to Azar that he regrets being involved in the Food and Drug Administration’s final decision on vaping products and this product category’s legal status.
The president holds a constitutional obligation to properly implement the laws of Congress and to respect the body’s power of the purse and making laws.
Trump holds the most important position in the federal government, the presidency, while Congress maintains the predetermined right to have the power of the veto override, the power of the purse, and the power to make and ratify laws.
The May deadline for premarket tobacco applications is referred to by consumers and the industry as the “vape apocalypse.”
The Food and Drug Administration was ordered by a federal district judge to move up the deadline from a previous date set due to the findings of public health advocacy groups succeeding in arguing that the FDA, under Trump, failed to enforce the law.
For that, the FDA now must enforce the PMTA deadlines and prepare for an indefinite exodus of hundreds of brands as the agency works to approve products on an efficient basis. Brands, too, could even cease to exist due to hefty fees and potential civil penalties for compliance failure.
Trump is still responsible. He appointed Azar. He appointed Sharpless. He appointed Hahn. He appointed Gottlieb. Congress approved these appointees. Trump also empowered his staff in his immediate offices to act with large amounts of power.
Truly, agencies in the Executive Office of the President (The White House) can be sued and restrained, with the oversight of the courts and in many cases Congress.
Most presidents will reshuffle their staff several times in their administrations. Trump has done that already in a variety of agencies like the Department of Defense.
Civil servants under this governance work at the pleasure of the president and his designated surrogates—including cabinet members, political appointees, and their staff.
Two ways to change the PMTA guidance structure is through a regulatory rewrite of the rules mandated by the Tobacco Control Act of 2009 or through a bill amending the law.
The administration has the power to reform the PMTA process to be easier to access for businesses who wish to comply with the laws.
The only issue is that the current rules that have been promulgated by the FDA are at the end of the regulatory framework and are required by a federal judge to implement the rules as drafted.
Congress must form legislation and get it passed and signed into law to effectively change the PMTA rules, moving forward.
I get the optimism for the administration to refrain from the PMTA deadline. However, there is no trust in the actual position of the presidency to protect from this.
For those political theorists who read our work, there is an existential crisis in the role of executive power among the three branches of the American government.
The power of the executive branch is the heftiest in the federal government. Members of both parties have long argued that the executive branch has outpaced Congress and the courts in the amount of power each branch has.
Every contemporary U.S. president has had a hand in expanding executive power to the point that regulation is the law of the land over the actual law.
I by no means support Trump. He’s done awful things during his tenure, and he is accused of high crimes of corruption stemming from credible accusations.
Democratic candidates are just as scary when it comes to industry survival, though.
All of this said, Trump may be the most flexible when it comes to dealing with Congress on matters related to regulatory overreach. That doesn’t say much, though.
Hopefully, the candidates in both parties can accept the fact that we are on the cusp of a new war on drugs. At this point, that’s a pipedream.
The PMTA in its current form monopolizes the vaping industry, blocking small businesses and non-tobacco affiliated firms.
Don’t underestimate my pragmatism. I am very scared for the industry and the impacts an aggressive tobacco policy would have on people’s rights and public health.
