When the Office of Information and Regulatory Affairs (OIRA) designates that a federal regulation or rule is significant, or having an effect on the economy of more than $100 million, the agency must send a report to the Government Accountability Office (GAO) and both houses of Congress. This requirement was signed into law in 1996 in the form of the Congressional Review Act (CRA), and it allows legislators to introduce a resolution of disapproval to rescind a regulation. If successfully passed, the rule “may not be reissued in substantially the same form.”
Though the requirement to inform the GAO or Congress is often ignored, the requirement and important oversight authority of CRA do provide a legislative tool for Congress if it becomes necessary to provide a check on burdensome federal regulations.
The American Action Forum predicts that given the current House and Senate calendars, President Obama will have until May 17, 2016 to issue significant regulations without fear the next Congress and succeeding administration will use the CRA to repeal the regulations.
One such significant regulation is the Food and Drug Administration’s (FDA) proposed “deeming regulation” for electronic cigarettes and vapor products in the U.S. Without Congressional intervention, the FDA is poised to deem that these tobacco-free technology products be regulated like tobacco products under the Family Smoking and Prevention Tobacco Control Act. Predictions on the impact of this regulation range significantly, with some estimates suggesting that the cost of compliance would range from $2 to $10 million per product currently being sold to consumers. The total impact on the economy would far exceed the $100 million threshold for notice and Congressional oversight. This includes closed businesses, job losses, compliance costs, and a significantly negative public health impact in the short and long term.
The first and easiest way to address the yet-to-be-announced deeming regulation for vapor products would be to amend what is known as the “predicate date” for the introduction of what the FDA labels as tobacco products, including e-cigarettes. A House Resolution (HR 2058) sponsored by Oklahoma Congressman Tom Cole does just that, and has 51 Republican co-sponsors in the House. ATR supports this effort.
But given the inaction over this issue, it’s time for the next President to weigh in. Without Congressional action and assuming the FDA does finalize its deeming rule for vapor products, the next president will play an important role in potentially utilizing the CRA in conjunction with Congress to prevent the FDA from destroying thousands of small businesses and harming public health.
E-cigarettes are at least 95 and as much as 99 percent less harmful than combustible cigarettes. This is no small issue and deserves the attention of those seeking America’s highest office.
In testimony to the Senate Commerce Committee, Matthew Myers of the Campaign for Tobacco-Free Kids explained,
“Responsibly marketed and properly regulated, e-cigarettes could benefit public health if they help significantly reduce the number of people who smoke conventional cigarettes and become sick and die as a result.”
Where do Donald Trump, Gov.John Kasich (R-Ohio), Sen. Ted Cruz (R-Texas), Hillary Clinton and Sen. Bernie Sanders (D-Vt.) stand on the FDA’s attempt to kill the vapor product industry? To date, none of these candidates have weighed in.
Given the fact that the Centers for Disease Control (CDC) estimates that there were at least 9 million consumers of these products in 2014, silence on these issues may not be a sustaining political tactic.