Nicotine Vapor Products - HF 2677

During the 2024 legislative session, the Iowa General Assembly enacted legislation that will heavily regulate the nicotine vape product industry in Iowa. HF 2677 will only allow FDA authorized nicotine vape products (or with pending applications before the FDA) which are listed on the Iowa Department of Revenue’s “vapor products directory” to be sold in Iowa. As of July 2024, the list of approved FDA devices contains power units and replacement cartridges produced by three manufacturers and contains only tobacco and menthol flavored cartridges. HF 2677 allows devices to be included on the “vapor products directory” if they have pending applications before the FDA, and two other states that have passed similar laws vapor product directories containing 498 products (includes alternative nicotine, such as nicotine pouches) (Louisiana) and 983 products (Alabama)

Position on HF 2677: “NO”. Would not even consider voting for this type of legislation

As a libertarian, I have numerous fundamental (or principled) disagreements with this type of legislation. First and foremost, this type of legislation is anti-competitive and decreases the types of products and the number of manufacturers that are competing for customers. Competition in the marketplace is what improves products and decreases the costs to consumers as every industry player is competing to make the best product that consumers want and for the lowest price so more consumers purchase their product. If the General Assembly limited the legislation to only those products approved by the FDA (not ones with pending applications), Iowa’s entire vapor product industry would have three companies competing for customers. HF 2677 was pushed by the tobacco industry, and despite what they or legislators include in their talking points, it is legislation that has the sole intent of limiting competition in the vapor product marketplace by making entry into the market more burdensome (without any benefit).

This legislation limits the choices Iowans have. One of the main principles of Libertarianism is that it is not the government’s role to make decisions on behalf of individuals who are capable of making the decision themselves. Iowa vape stores are not going to sell products to Iowans knowing they are dangerous or have substantial risk of posing a danger to their customers. This legislation assumes the opposite is true. Iowans are capable of doing the research on the vape store to determine whether the products they want to purchase are safe or the risk of the product being unsafe is sufficiently low. This legislation assumes the opposite is true. The Iowa General Assembly just inserted the government, including the federal government, into the space where Iowans once had the freedom of choice.

Second, this type of legislation cedes authority that the State of Iowa retains for its people to the whims of the federal government, and the bureaucrats that are increasingly dictating every aspect of our lives. Legislation that cedes decision making to the federal government, when the US Constitution reserves it to the States, is almost guaranteed to get a “NO” vote from me. To put it bluntly, the Iowa General Assembly just enacted legislation that made the Food and Drug Administration (the federal government) the exclusive decider of what nicotine vapor products are available for Iowans to choose from.

I know there are many of you out there that will say, “well, we can trust our government and government agencies, to make these decisions and make sure the products we have to choose from are safe, right?”. This vapor product legislation is yet another example of why we should never trust the government to make these decisions for us. The vapor product industry is a massive industry with many manufacturers making all kinds of products and product flavors. Competition for customers is robust, and the products available to consumers is expansive. It is very likely that the vast majority of legislators who voted for this bill were unaware that the FDA has declined to approve a single flavored (non tobacco or menthol) nicotine vapor product. It is virtually guaranteed that most legislators who voted for this legislation had no idea that the FDA pulled the rug-out from underneath manufacturers who submitted flavored nicotine vape products by changing what as required in their applications after they were already submitted.

Similarly, the language in HF 2677 that allows products with applications pending before the FDA, the provision that is currently allowing flavored nicotine products to be on other state’s registries and in Iowa’s future registry, is only allowing those products to be on the registry because the United State’s Fifth Circuit Court of Appeals put a stay on the FDA’s denial of approval because the FDA pulled a switch-a-roo (legal term) on the companies seeking approval for their flavored nicotine products. Summarizing what occurred, the 5th Circuit wrote:

“Over several years, the Food and Drug Administration (“FDA”) sent manufacturers of flavored e-cigarette products on a wild goose chase.

First, the agency gave manufacturers detailed instructions for what information federal regulators needed to approve e-cigarette products. Just as importantly, FDA gave manufacturers specific instructions on what regulators did not need. The agency said manufacturers’ marketing plans would be “critical” to the success of their applications. And the agency promulgated hundreds of pages of guidance documents, hosted public meetings, and posted formal presentations to its website—all with the (false) promise that a flavored-product manufacturer could, at least in theory, satisfy FDA’s instructions. The regulated manufacturers dutifully spent untold millions conforming their behavior and their applications to FDA’s say-so.

Then, months after receiving hundreds of thousands of applications predicated on its instructions, FDA turned around, pretended it never gave anyone any instructions about anything, imposed new testing requirements without any notice, and denied all one million flavored e-cigarette applications for failing to predict the agency’s volte face. Worse, after telling manufacturers that their marketing plans were “critical” to their applications, FDA candidly admitted that it did not read a single word of the one million plans. Then FDA denied that its voluminous guidance documents and years-long instructional processes meant anything. Why? Because, the agency said, it always reserved the implied power to ignore every instruction it ever gave and to require the very studies it said could be omitted, along with the secret power to not even read the marketing plans it previously said were “critical.” It was the regulatory equivalent of Romeo sending Mercutio on a wild goose chase—and then admitting there never was a goose while denying he even suggested the chase.”

Wages & White Lion Invs. v. Food & Drug Admin., 90 F.4th 357, 362 (5th Cir. 2024)

There are other Circuit Courts that upheld the FDA’s denials, based on other grounds. But the United State’s Supreme Court has agreed to hear the case to resolve the circuit split and to answer the question on whether the FDA acted arbitrarily and capriciously when it wholesale denied any and all flavored nicotine products seeking approval to be sold in the United States.

This is why you don’t cede the power to decide what Iowans can and cannot do, purchase, watch, etc… to the hands of the federal government. BUT FOR THE 5TH CIRCUIT COURT OF APPEALS, THE ONLY NICOTINE VAPE PRODUCTS AVAILABLE IN IOWA (ONCE THE REGISTRY IS ACTUALLY COMPLETE), WOULD BE TOBACCO AND MENTHOL FLAVORS EXCLUSIVELY.

And what safety benefit is there for this limitation on products available to Iowans? None. Because the FDA didn’t deny the 1 million flavored nicotine products after an actual review of the data and science. The FDA denied over 1 million products because their applications didn’t include a specific study that the FDA previously told the manufacturers they didn’t need to include in their applications.

As a former caucus staff analyst who advised legislators on what a bill would and would not do, what unknowns there are, how things can be address through amendment(s), and any other questions a legislator may have on a bill; I have ability to critically read legislation, do the research, do the analysis, and make a truly informed decision on what is and is not in the best interest of the people I represent.

Ask yourself, how many legislators do you think would still have voted for HF 2677 if they were provided the analysis contained in this post? Now, ask yourself if you think my opponent, Mr. McBurney, would do his own analysis like me? Or would blindly follow the rest of his party and vote “YES” without knowing what the bill actually would do for (to….) Iowans?

P.S. Don’t even get me started on the “unannounced inspections” of distributers and retailers by peace officers authorized in the legislation. Without getting into the likely violation of the right against unreasonable searches and seizures (which it is most likely), why are we sending the police to a store in which legal products are sold? Just to ensure they are complying with the law? We don’t even allow unauthorized inspections by police for Iowa’s cannabidiol dispensaries, which are only subjected to “reasonable inspection by the department“(of Health and Human Services).