|motivation||projection, free corporate speech, prohibition pretext|
Most interesting/credible aspect of the US war on vaping is the marketing, and lack of regulations. It's a judicial/societal defecit, as well as vendor ineptitute/unwillingness (plus precognition of kin liability), and a clear abdication of FDA (could have enacted something with deeming regs).
It seems not the least induced by CTFK's motivations, notably diverting from their public claims. Premature marketing regulation or restricting bright packaging would undermine their prohibition efforts, or making habituation ATFs prevalent / market contraction for adult use.
Vendors ads vs in-school DARE-style campaigns
FDA sidelining marketing aspects in PMTA process
Overloooking more crucial marketing aspects for NVPs, gives CorpT a free pass, and disadvantages smaller vendors (which have lesser potential for substantial advertisment campaigns to begin with).
- FDA vs Copper/VapUn/UnionStr/PopVap (PDF)
Because the marketing and sales-access-restriction plans were relevant factors and addressed “an important aspect of the problem,” […], it was arbitrary and capricious for the Administration not to consider them. […] explicitly stated in marketing denial orders […] that it did not consider the marketing or sales-access-restriction plans in […] applications.
The Administration offers its experience as its primary excuse for its refusal to consider the marketing and sales-access-restriction plans. The Administration cites its “extensive experience with sales[-]access and marketing restrictions” and repeats its explanation from the marketing denial orders that it was “not aware of access restrictions that, to date, have been successful in sufficiently decreasing the ability of youth to obtain and use [e-cigarettes].”
Strong tendencies of offloading to invidual vendors on vague assertions of inefficacy:
Limiting youth access and exposure to marketing is a critical aspect of product regulation. It is theoretically possible that significant mitigation efforts could adequately reduce youth access and appeal such that the risk for youth initiation would be reduced. However, to date, none of the ENDS PMTAs that FDA has evaluated have proposed advertising and promotion restrictions that would decrease appeal to youth to a degree significant enough to address and counter-balance the substantial concerns, and supporting evidence, discussed above regarding youth use.
access restrictions that, to date, have [not?] been successful in sufficiently decreasing the ability of youth to obtain and use ENDS. Accordingly, for the sake of efficiency, the evaluation of the marketing plans in applications will not occur at this stage of review, and we have not evaluated any marketing plans sub- mitted with these applications.
(Other cases were about shenanigans with with late notifications on formal changes, ignoring whole sections, redefining essentiality of certain types of evidence...)
Lifestyle marketing vs purpose disclosure
Deeming regs preempt vendors disclosing product intent even in the vaguest
of terms. Even though communicative medicalization ("intented only as
smoking substitute / to reduce smoking") would be the most plausible deterrant
to experimental/teen use.
Instead the FDA permitted all sorts of lifestyle/gimmick advertisements with few notable interventions.
Anti-vaping ads did more harm than good (judging by proclaimed purpose)
Also instead, they ran translucent scare campaigns (KnowTheRealCost) that is now believed not just largely ineffectual, but to have stoked teen curiosity. It's possible those "anti-vaping" ads primarily abetted a moral panic.