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83 Brook. L. Rev. 777 (2017-2018)
The Deeming Rule: The FDA's Destruction of the Vaping Industry

handle is hein.journals/brklr83 and id is 795 raw text is: 







The Deeming Rule


          THE   FDA'S   DESTRUCTION OF THE VAPING
                          INDUSTRY

       I currently work alone to build [devices that power atomizers in
    e-cigarettes] for my local community. It took me years to find a hobby
    that I excelled at and thoroughly enjoy. Business has been steadily
    increasing and [I] have plans to expand and hire employees. But at
    the proposed fees, I would have no choice but to stop.'

INTRODUCTION

       The  Food  and  Drug  Administration  (FDA)  is the oldest
consumer   protection  agency  in  the  United  States, officially
created in 1930.2 The agency  is tasked with the responsibility of
protecting the public health by ensuring the safety, efficacy and
security of human and veterinary drugs, biological products,
medical  devices ... our  nation's food  supply,  cosmetics, and
products  that  emit  radiation.3 It has regulated  the  tobacco
industry  since  researchers   discovered  that  cigarettes were
detrimental  to human   health.4 According  to the FDA,   tobacco
use  kills more than  480,000 people  in the United  States  each
year, and  each  day  about  600  youth become   daily smokers5
About  42.1 million Americans  smoke  cigarettes.6
       The   FDA's   new  Deeming Rule, an amendment to
President Barack  Obama's  2009  Family Smoking   Prevention  and




       1 Brief of Amicus Curiae Smoke-Free Alternatives Trade Association in
Support of Plaintiffs' Motions for Summary Judgment at 7, Nicopure Labs, LLC v. Food
and Drug Administration, 266 F. Supp. 3d 360 (D.D.C. 2017) (No. 16-0878), 2016 WL
6355070 (survey response from an artisan in the business of crafting hand-engraved box
mod units for vaping use).
       2 U.S. Food & Drug Administration: History, U.S. FOOD & DRUG ADMIN., http://
www.fda.gov/AboutFDA/WhatWeDolHistory/default.htm [https://perma.ce/34LZ-AVCE].
       3 U.S. Food & Drug Administration: What We Do, U.S. FOOD & DRUG ADMIN.,
http://www.fda.gov/AboutFDA/WhatWeDo/ [https://perma.cc/CH9C-4LL3].
       4 Kristi Keck, Big Tobacco: A History of its Decline, CNN (June 19, 2009) http:l
edition.cnn.com/2009/POLITICS/06/19/tobacco.decline/ [https://perma.ccIYP2T-U6GT].
       5 Overview of the Family Smoking Prevention and Tobacco Control Act, U.S.
FOOD & DRUG ADMIN., https://www.fda.gov/TobaccoProducts/GuidanceCompliance
RegulatoryInformation/ucm246129.htm [https://perma.cc/9Z46-A7VD].
       6 Id.


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