The eJuices.co is currently monitoring the incoming Joe Biden administration’s picks for several different government agencies that will have a direct effect on the vaping industry. The eJuices.co team has identified five positions that may directly affect the vaping industry. Currently, we know three nominees, while two other positions have unknown or speculated nominees. Here are the (potential) nominees for the five positions the eJuices.co team considers vital to the vaping industry’s health and survival.
Secretary of Health and Human Services: Xavier Becerra
Requires Senate Confirmation: Yes
As we previously discussed in State of Vape, California Attorney General Xavier Becerra’s nomination is unique in that it was part of a domino effect in open positions in the California state government. Vice President-elect Kamala Harris has vacated a Senate seat, Alex Padilla is potentially vacating the Secretary of State seat for Harris’ old Senate seat, and Becerra is vacating the Attorney General seat. This gives Gavin Newsom wide discretion on how he can shape California’s government going forward, and it can potentially drastically alter the state of vape in California.
The referendum in California has given voters the power to decide whether or not flavors will be banned in November 2022. Becerra has previously filed a lawsuit against JUUL and has authorized $30 million to combat illegal tobacco sales in California, so at the federal level he could possibly be aggressive in enforcing vape legislation and regulations. Currently, much of the power to regulate the vaping industry lies in one of the agency’s sub-agencies, the Food and Drug Administration (FDA).
FDA Commissioner: TBA
Requires Senate Confirmation: Yes
Dr. Stephen Hahn has been in his job just for over a year, and enjoyed a degree of bipartisan support during his confirmation process. However, as Biden is seeking to undo the damage done by the Trump administration, it is possible that this position could also change hands. The pharmaceutical industry site FiercePharma aggregated a list of potential nominees for the FDA commissioner position. As of this writing, it is still unknown who will actually be the FDA commissioner.
Names that have previously come up in our State of Vape blogs including Dr. David Kessler, the only FDA commissioner to serve across administrations from different political parties. Other potential nominees include several other former FDA commissioners such as Ned Sharpless, Scott Gottlieb, Robert Califf, and Peggy Hamburg. While it would take a long time to gather all these potential nominees’ positions on vape, there is one event that shop owners should observe. The finalization of the Deeming Rule occurred under Califf’s leadership of the FDA, so Califf returning to the FDA commissioner position might not be favorable to the vape industry. It is unlikely that Gottlieb will return to the position two years after leaving it to spend more time with his family.
The real power providing guidance and authority regarding vape lies in the FDA’s Center for Tobacco Products (CTP), a sub-agency of the FDA. Some have argued that the head of the CTP should require Senate confirmation because of the power the agency is given without the accountability to the people and their representatives. Mitch Zeller has been in the position since 2013. Some of Biden’s nominees for other positions have also served in the Obama administration, so it is unlikely that this position will change hands unless Zeller unexpectedly steps down.
Centers for Disease Control and Prevention: Dr. Rochelle Walensky
Requires Senate Confirmation: No
While we expect the Centers for Disease Control and Prevention (CDC) to have their hands full with the COVID-19 response, there have also been many attempts to link vaping with COVID-19. Dr. Rochelle Walensky is Biden’s nominee for the director of the CDC, and her expertise lies in infectious diseases, which is consistent with the incoming Biden administration’s plans to combat the global pandemic.
Dr. Walensky has not made any public statements about vaping that we know of, but if Dr. Hahn stays on as head of the FDA, his promise to study the “science and evidence” surrounding vaping may also directly affect the CDC’s own guidance on vaping. EVALI may have not lasted long in terms of media hype, but the effects on the industry have prompted many states to ban flavors or propose banning them.
Surgeon General: Dr. Vivek Murthy
Requires Senate Confirmation: Yes
Dr. Vivek Murthy already served as Surgeon General from 2014 to 2017, when he was dismissed by President Donald Trump. Dr. Murthy is slated to return to the position alongside other familiar faces in the Obama administration. He is currently the co-chair of the COVID-19 Advisory Board. Murthy’s first tenure as Surgeon General was marked with hostility towards the vape industry in 2016. “We know a great deal about what works to effectively prevent tobacco use among young people,” the report said. “Now we must apply these strategies to e-cigarettes,” he said.
Murthy’s re-appointment to the position might galvanize anti-vaping organizations such as the Campaign for Tobacco-Free Kids. However, his stance could also spell an opportunity for the vaping industry to reposition themselves. Murthy’s stance seems to be more against youth vaping rather than vaping in general, and T21 is one of the few things that both the vaping industry and its opponents can agree on.
Attorney General: TBA
Requires Senate Confirmation: Yes
While the Biden administration has not nominated anyone to this post yet, there are several strong contenders for Attorney General. The reason that the eJuices.co team believes that this is pivotal is because if vape legislation is enacted at the federal level, the Attorney General will be responsible for enforcing those laws.
As of this writing, some names that are potential nominees include former Senator Doug Jones, who has worked with Biden on several occasions during his career, former Secretary of Labor Tom Perez, former acting Attorney General Sally Yates, and federal appeals court judge Merrick Garland, who was nominated by Obama to the Supreme Court following former Supreme Court Justice Antonin Scalia’s death in 2016 but not confirmed. Former Massachusetts governor Deval Patrick is also in the running, although his chances are slim.
While we do not know their individual stances on vape, it may possibly emerge during the confirmation process despite the current focus on COVID-19. It is more likely that the Attorney General confirmation process will focus more on other issues, but the eJuices.co team believes that vaping may come up during the hearings.
In the coming weeks, we will be keeping a close eye on these nominations and the confirmation process. The special elections in Georgia on January 5 may also have an effect on Biden’s nominees for positions who do not have any defined nominees. If you have any questions or concerns, you can always contact your eJuices.co account manager or sales representative.