Actual True Story: Trump Admin. Proposes Bold New Regulation

Yes, it’s hard to believe. But it actually did happen.

On Thursday, the FDA made a stunning announcement about a new regulation for cigarettes.   Given that this is the Trump Administration, you might have thought they were going to require school lunch programs to hand out cigarettes or something. But no. FDA is proposing — or more accurately, is proposing to issue a proposal — that would cut nicotine levels in cigarettes so low as to make them them non-addictive.  If the Obama Administration had proposed the same thing, Republicans would be screaming about presidential lawlessness and job-killing regulations. My expert, professional first reaction was “Wow.”

Here are some of the reasons this is so surprising:

Unprecedented.  No one has done this type of regulation before, anywhere.  So there’s no track record.  Experts think it could save the lives of many existing smokers by getting them to switch to safer products like e-cigarettes or quit outright, while preventing young people from getting addicted. But since this has never been tried, there’s no real empirical evidence one way or the other.

White House review.  The proposal went through White House review, which concluded on March 6.  Yet apparently nobody killed it, in a White House where the very word “regulation” is reviled. Instead, the review office’s log says “consistent with changes,” meaning that they merely obtained some modifications. How did such a proposal get this far?

Politics.  As you may have heard, the tobacco industry is pretty powerful.  And tobacco is important in areas that Trump needs to keep happy, with the three biggest producers being North Carolina, Georgia, and Kentucky.  I can’t imagine that Mitch McConnell is happy. And smoking now correlates negatively with education, meaning that Trump supporters are more likely to be smokers.

Trump is a germaphobe who hates the thought of contamination. So maybe he just doesn’t like smoking.  Or maybe there’s some other back story.  But in the meantime, hats off to Scott Gottlieb, the head of FDA, for making this happen.

Scott Gottlieb has been a distinctive presence in the Trump Administration before this. His approach has been the opposite of the other Scott who runs EPA and is engaged in open warfare against the agency. Gottlieb has a much more constructive governance approach, as reported by the NY Times last month:

“So far, the commissioner has displayed a collaborative management style, seeming to allay the concerns of some career employees who had balked at his industry ties and were dismayed by articles he had written criticizing the F.D.A. He has overcome some divisions by promoting several agency veterans, but he has also hired a few industry insiders for top positions. He is described by staff as energetic and intense, while holding town hall-style meetings before making decisions.”

When Gottlieb was nominated, I looked at his record and read a couple of his papers. Although there were concerns about his ties to the drug industry, I found him to be an outlier among Trump appointees because of his competence and professionalism. Thursday’s regulatory action confirms Gottlieb’s outlier status. We can only hope that he can continue to play an effective role in a an Administration where his professionalism and commitment to his agency’s mission are the exception rather than the rule.

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Reader Comments

One Reply to “Actual True Story: Trump Admin. Proposes Bold New Regulation”

  1. On the surface this appears to be a great proposal compared to the typical proposals conjured by Trump’s various cabinet heads. But if one thinks carefully about this proposal one will see that it is neither realistic nor will it work. As a comparison, imagine alcoholic beverages being regulated so that the alcohol content in them would be lowered to the point that it would not give “drinkers“ anything but a very mild buzz. There would be a wild public outcry amongst the many millions who drink alcohol basically to pickle themselves so they don’t have to feel whatever pain or stress they have to deal with in their lives. Same holds true for people who smoke. If you remove so much nicotine from cigarettes that they don ‘t have any kind of effective relaxation benefits then smokers are going to be outraged. The idea is certainly a unique and well intended one but it’s simply not realistic and will be shut down one way or another by one group or another. The blowback would be too intense to get a proposal like this into the regulation books.

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Dan Farber

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

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