Congressional Democrats Pressuring FDA to Be Political

When the institutions of government are taken over by political operatives driving policy, policy suffers. The Food and Drug Administration (FDA) has taken recent actions that fall right into that category of politically driven decision-making.

A specific energy drink has become a target of regulators, because Sen. Chuck Schumer (D-NY) called on the FDA to crack down. The AP reported on July 9, 2023, “Sen. Charles Schumer called on the Food and Drug Administration to investigate PRIME, a beverage brand founded by the YouTube stars Logan Paul and KSI that has become something of an obsession among the influencers’ legions of young followers.” The Senator was upset by sponsored content with influencers that he argued was the functional equivalent of advertising. All this even though the energy drink has a label that it is not recommended for those under 18 and has explicit information about the amount of caffeine in each drink.

Another example of the politicization of the FDA is the push to regulate flavored e-cigarettes because of pressure from Capitol Hill. Back in June 2021, FDA’s scientists announced how they had prioritized the review of big tobacco-flavored vaping brands applications to be on the market because decisions on those applications would have “the greatest impact on public health.” Bid Tobacco owned JUUL was given more time than other similarly situated companies when bans were considered by the FDA.

Then, several weeks later the FDA Commissioner was summoned before Congress and placed under enormous pressure by Members to get rid of all flavored vaping products in the name of protecting children. The target was primarily made by smaller companies. CNN reported on June 23, 2021, “Members of Congress pressed acting US Food and Drug Administration Commissioner Dr. Janet Woodcock on Wednesday to ban all flavored e-cigarettes, saying the sweet and fruity flavors are attracting too many children and teens.” Again, this is an example of Congress driving a regulatory decision better left to the FDA.

No less than two weeks after the hearing where the FDA commissioner refused to commit to regulating, FDA’s scientists wrote a memo saying they were told to deprioritize their focus on Big Tobacco brands and figure out a way to resolve all the flavored vaping product applications from small US businesses.

Having cleared the market of the small business’ flavored products, about a year later, Members of Congress met with FDA and demanded FDA deny JUUL’s application to sell. Within days, FDA announced that it was denying JUUL’s application which certain Members publicly stated was because they had met with FDA recently.

Fast forward to this year where politicians again are driving FDA policy. Sen. Schumer went on a three-week media rant about banning ELFBAR, an incredibly popular vaping product amongst adults. The FDA capitulated once again and for the first time added ELFBAR to an “import red list” to keep it out of the country.

For an agency that constantly says it “follows the science” on vaping, it must have been really uncomfortable when its own scientists reported to the Reagan-Udall Foundation – an independent panel of tobacco experts that had been tasked with reviewing FDA’s tobacco center processes – that “decisions of scientists are being overridden” by higher ups or that there was a “got to get them” culture related to the agency handling of vape products.   

For years, Americans were told that tobacco products were among the most-important threats to public health and needed strict regulation—as well as public policies designed to encourage alternatives to tobacco and thus reduce smoking. Industry took up that challenge, and e-cigarettes were born.

To start, many users perceive vaping to be a less harmful alternative to traditional smoking, providing a nicotine fix without the harmful effects of combustion or the presence of tar and other harmful substances. E-cigarettes also offer a wide variety of flavors, which has attracted a significant number of users. Lastly, vaping provides a way for smokers to gradually decrease their nicotine intake, potentially aiding in cessation attempts.

The data bears this out as well. There have been several studies that have shown that vaping reduces demand for cigarettes and helps smokers to quit. Some of these studies include a study published in the New England Journal of Medicine in 2016 found that smokers who used e-cigarettes were more likely to quit smoking than those who did not use e-cigarettes.

When agencies ignore science in pushing new policies, the public is left with three possibilities as to the “why” – it’s either cronyism (some well-heeled business interest manipulating policy to benefit their business model), some kind of political agenda, or some combination of the two. In any case, it is the public that ultimately loses. When it comes to the FDA, Congress should stop letting politics interfere with good public policy.

Andrew Langer is President of the Institute for Liberty.