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By Maggie Fox
When the Food and Drug Administration announced last week that it would attempt to limit flavored vape sales to teens and launch the long process of banning menthol cigarettes, it looked like a crackdown.
But tobacco control advocates know that the agency faces a tough battle against a set of experienced and determined industries. Tobacco companies have decades of experience in addressing barriers to their business practices and, even though tobacco is the leading cause of death in the world, it remains legal everywhere.
With this week's announcement, the agency has challenged three major industries: the traditional Big Tobacco, a growing e-cigarette industry and retailers. We can expect everyone to push back.
"I never underestimate the power of the industry," said Gregg Haifley, of the American Cancer Society's network of action against the American Cancer Society, the lobby group of the American Cancer Society.
While anti-tobacco advocacy groups have all welcomed the FDA's announcements, many have expressed doubts about whether the proposals go far enough and about the FDA's ability to deliver on them. And the industry immediately deployed his lawyers.
The tobacco giant, Reynolds American, launched an unveiled threat immediately after the FDA issued its statements Thursday, saying any proposal to ban menthol cigarettes "would be subject to judicial review" .
Murray Garnick, General Counsel and Executive Vice President of the Altria Group, said the FDA needed to take several steps to end the use of menthol in cigarettes and limit the sale of flavored vaping products. "We continue to believe that a total ban on menthol cigarettes or flavored cigars would be an extreme measure unsupported by science and evidence," Garnick said in a statement.
"We expect the establishment of product standards for menthol and flavored cigars to be a multi-year process of deliberation, and we will fully participate in this process."
The National Association of Convenience Stores also expressed skepticism over the FDA's proposal to allow retailers to separate sales of flavored spray products to make them more difficult to buy. "We are asking the FDA to share any information it has available demonstrating that its proposal will improve age verification on electronic cigarette sales," said Lyle Beckwith, of the group.
We have to wait for it, Haifley said.
"Whenever a significant and meaningful proposal to limit their behavior or reduce the consumption of their product is used, they almost always turn to the courts to block, delay, hinder," he told NBC News.
"And of course, litigation delays can take more than ten years, and every day that goes by, smokers continue to smoke, and more and more smokers become addicted to their products."
The same goes for vaping. While industry and some of its supporters claim that e-cigarettes can be effective in helping smokers reduce their use of deadly tobacco, lawyers point out that nicotine-rich products are addictive in the new generation. And they say that sprays flavored with sweets, fruits and other sweet tastes are not aimed at hardened smokers, but at children.
The FDA did not even have the power to regulate tobacco or tobacco products until 2009, when Congress passed the Tobacco Prevention and Family Tobacco Control Act. This did not give the agency the power to ban tobacco products altogether, but allowed room for regulation of new products.
Supporters of the fight against smoking felt that the FDA had almost immediately failed at work after failing to get noticed by the then embryonic electronic cigarette industry.
The FDA has actually tried calling medical devices for electronic cigarettes, which would have been a more familiar way of forcing approval before marketing. But the tobacco companies challenged that and won over federal courts of appeal, which said they should be regulated as tobacco products.
While the FDA was working on the construction of its center for tobacco products, vaping was taking off heavily. According to reports from the Centers for Disease Control and Prevention, 3.6 million college and high school students use C cigarettes, or more than 20% of high school students. And 2.8% of adults use them.
Many electronic cigarette companies are subsidiaries of tobacco companies, but others are independent. The most successful companies, such as Juul, are already multibillion-dollar companies, and tobacco control advocates claim to have shown how they want to build relationships with the FDA.
"It's one of the most politicized and savvy businesses we've seen in years," said Matthew Myers of the Campaign for Tobacco-Free Children. "What's unfortunate is that they are using this know-how to avoid regulation and mass-produce a product that has drug-using children all over the country."
Manufacturers of electronic cigarettes, including Juul and Blu, welcome the limits that would prevent teenage girls from running out of steam and claim to have reduced their marketing and advertising to young people.
Myers does not trust them.
"Juul is smart enough to try to use the FDA's actions to falsely create a caring and accountable sense of society," he said. "A benevolent and responsible company would never have run the social media campaign launched by Juul and continued it until the outcry broke out."
Haifley is waiting for a qualified defense of the electronic cigarette industry. "They took several pages of the game book of cigarette manufacturers in terms of product manipulation, marketing strategies, litigation tactics, hiring an army of lobbyists, etc.," he said. declared.
"They have learned a lot," said Robin Koval, CEO of Truth Initiative, a non-profit organization created under an agreement signed in 1998 between leading US tobacco companies and 46 states, the District of Columbia, and five American territories.
Groups such as the American Cancer Society, the American Heart Association and the American Lung Association, as well as state governments, have spent decades pursuing tobacco companies. They never won on the spot, just paying billions of dollars and limiting marketing and tobacco advertising.
A second round of prosecutions resulted in a series of advertisements in which tobacco companies must admit publicly that they lied, conspired and deliberately worked to make cigarettes even more addictive than they already were. Even in this case, the statements are bland and boring, thanks to the many lawsuits brought by these same tobacco companies.
"In fact, tobacco companies have been fighting for more than 11 years to weaken and delay corrective statements, stressing how little they have changed," said the cancer and heart associations, with others, in a joint statement Friday.
The FDA was also very slow to use its powers, said Haifley. It was not until 2014 to publish its plans for regulating tobacco products and to act even more slowly to fight against electronic cigarettes. "By the time they were able to announce that they were going to assert their authority over these products, the market was inundated," said Haifley.
"It's the mess we're in now."
Tobacco companies also have congressional allies that will help slow down the FDA's efforts. "All you have to do is look at every Congress and you see bills that would reduce or strip the FDA's authority of some of these products," Haifley said.
Any new initiative by the FDA will have to follow a slow and bureaucratic process actively inviting the public, but also the industry, to weigh. Business lawyers and lobbyists will use this process, Haifley said. Along the way, special interests will have to work to block the proposals, he said, up to the White House's Office of Management and Budget.
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