Vaping crisis exposes Republican divide over regulation

But many others complain the government is overreaching and could do more harm than good — to public health and to small businesses.

“I don’t know that there’s full support for what the administration is planning,” said Rep. Mark Meadows (R-N.C.), the former leader of the House Freedom Caucus and usually a staunch Trump ally. “There is unity in saying high school and young children should not have vaping products, and whatever we have to do to make sure that happens would be appropriate. But beyond that, affecting adults’ access to vaping products will not find real fertile soil here in the House. That’s not who we are as a free society.”

If forced to choose between supporting Trump’s initiative and opposing government intervention in a legal market, Meadows said, “We’ll default to our free market principles.”

Earlier this summer, during a House committee hearing on the popular e-cigarette brand Juul, several Republicans blasted the Democrat-led probe and sounded the alarm on proposed restrictions on the burgeoning market.

Juul has seen “amazing growth” and employs 3,000 people, said House Oversight Committee ranking member Jim Jordan (R-Ohio) during the July hearing. “The reward for all that is you get brought in front of Congress and you get yelled at by Democrats.”

But some Republicans have lined up behind Trump’s response to the lung disease outbreak, citing an urgent need for research and answers and praising the White House for decisive action.

“It can’t be a business decision. It has to be a public health decision,” said North Carolina Senator Thom Tillis, whose state, besides being home to a sizable tobacco industry, houses popular e-cigarette brand blu, owned by Imperial Brands tobacco company.

Supporters of the administration’s crackdown argue that it merely accelerated laws requiring e-cigarette manufacturers to submit their products for FDA review. A federal judge this summer had pulled the deadline up to May 2020. The White House’s plan to pull flavors off the market, in the meantime, was driven by persistently high teen vaping rates.

“This isn’t some policy that the Trump administration dreamed up because they wanted to moralize about children,” said Katy French Talento, Trump’s former public health advisor. If free-market Republicans don’t like the law “they need to take it up with Congress,” she said.

Other Republicans, including North Carolina’s senior senator Richard Burr, are digging in their heels, warning that broad flavor bans will turn smokers back to cigarettes and shutter thousands of small businesses that say they are tailored to adult vapers, not teens. The administration’s plan to include menthol and mint flavors in the ban has become a point of contention, particularly since menthol cigarettes remain on the market.

President Barack Obama and three previous administrations didn’t attempt to remove menthol from the marketplace, Burr told a room of tobacco industry representatives at a conference in Washington D.C., last week. “But that’s the proposal that’s been laid out, and in the frenzy that Washington has created we have states like Massachusetts and others that are considering a total ban on an issue that they have absolutely zero facts to make a conclusion.”

Republicans opposed to broad bans say kid-friendly flavors are the problem, and note that many former smokers credit vapes with helping them quit.

While marketing to kids and teens is a no-go, “lawful products should be available to adults in forms that adults actually want to use,” including flavors, said Sen. Ron Johnson (R-Wisc.) “You may incentivize people to stop vaping and go back to cigarettes, which would be, according to the Royal Academy of Physicians, far more harmful.”

At least 200 small e-cigarette manufacturers and self-described “mom and pop” vape shops hit Capitol Hill this month to plead with lawmakers to soften the looming flavor bans in favor of other measures like higher taxes and better age verification at stores. The Vapor Technology Association, which organized the lobby day, declined to say which lawmakers they felt were ready to defend the industry from impending regulations.

The small business argument holds sway with a number of conservative groups. Free market think tanks and vaping advocates are building the case that Trump’s move will turn millions of vapers in key election states against him. Americans for Tax Reform has circulated a document on the hill estimating the numbers of vapers or shop owners in those states that could turn against the president in the upcoming election because of this ban.

“The administration is not ignorant of the importance of small business,” said American for Tax Reform’s Paul Blair. “What the administration has to ask themselves, and what HHS has to ask themselves, is whether they are willing to hand over an industry that disrupted tobacco back to tobacco.”

Burr, at the tobacco conference, said there are 11 vape shops in his hometown, Winston-Salem. He also pointed to increases in teen alcohol and marijuana use — reflected in the federal data that also shows a rise in teen vaping — and asked where the outrage is over those products.

Other Republicans are homing in on the marijuana issue as well.

“I think it’s ironic that some who are completely against the vaping products are also the very same people who are pro-marijuana,” said Jim Jordan last week.

But Democrats, who have long had their eyes trained on the booming e-cigarette industry, note that nicotine vapes appear to account for at least a small percentage of the lung disease cases, and that big brands like Juul are part of the uptick in teen nicotine use.

This simmering debate in Congress could boil over when the FDA releases guidance on flavor restrictions — something acting commissioner Ned Sharpless has said will land in the coming weeks.

Talento told POLITICO that clashes and imbalances are inevitable on issues like this in the GOP, but “it’s just a natural tension. In our party we can handle it.”

At the tobacco conference, Burr called the current environment a “witch hunt” for the vaping sector — before joking that it might not be a good phrase to use at the moment.

“Sound science should drive policymaking. Facts should drive policymaking,” Burr said. “Can we begin to write policy reflective of how we should do it, and not reflective of how are emotions are that day?”

Adam Cancryn contributed to this report.