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Op-ed Placement

New FDA Commissioner Needs to Get in Line With the Rest of Trump’s Deregulation

BY Ken Cuccinelli
03/11/2019
Originally Published in The Washington Examiner by Ken Cuccinelli on 3/11/19.

Democratic control of the House of Representatives and the departure of Food and Drug Administration Commissioner Scott Gottlieb is a key turning point in President Trump's first turn and should be seen as an opportunity for the Trump administration to double down on deregulation. Some of the greatest policy victories of the last two years have come from an expansion of freedom and opportunity as a result of executive agencies rolling back burdensome regulations. With more gridlock expected in Congress, the administration has the chance to place an increased focus on its successful deregulatory agenda.

Unfortunately, not every part of the executive branch has gotten the message, including the FDA under Gottlieb. Instead of queuing up deregulatory actions, the FDA is poised to enact a number of costly regulations that undermine the free market, as well as some of the key promises of the Trump presidency.

The FDA has proposed a ban on flavored vaping products nationwide, an act that would wipe out an entire new industry. In July 2017, then-new FDA Commissioner Scott Gottlieb said he planned to create a world “where adults who still need or want nicotine could get it from alternative and less harmful sources.” Somewhere between then and now, it would seem Gottlieb had a 180-degree change of heart.

Flavored vaping products offer exactly the kind of "less harmful" alternative for adults who want to quit smoking — that is why the industry came into being in the first place!

A recent study indicates that flavored vaping products are not especially enticing to adults and young people who do not smoke, but are appealing to adults who have already picked up smoking. The free market has provided a healthier, i.e., less harmful, alternative to smoking. The FDA promised to encourage exactly that, but instead of championing this healthy development, Gottlieb has gone back on his promise and put the well-being of many people at risk while destroying an entirely new industry at the same time. That’s quite a counterproductive twofer.

So, in addition to getting rid of a proven method to entice smokers away from smoking and to a much healthier alternative, the FDA is going to completely destroy this new industry with no thought about the consequences for the many people who have worked so hard and spent so much of their own money to establish this new industry in the first place. Americans should find this infuriating, and hopefully the next commissioner of the FDA will as well.

Less freedom, less opportunity, the destruction of investment and private property, and worse health outcomes: not a moment to be proud of for Gottlieb and the FDA.

Safe alternatives to smoking aren’t the only things that have drawn the ire of Gottlieb and the FDA. The FDA recently issued a notice announcing it was exploring potential regulations on the labeling practices of plant-based dairy alternatives, such as almond milk, which I actually drink.

The FDA claims that terms such as "almond milk" are misleading, as almonds do not actually lactate. The FDA also claims that such “deception” will hurt the dairy business. Therein lies the real motive; follow the money and you'll almost always find an explanation for bad regulatory decisions.

Studies are showing that non-dairy milk sales are rising rapidly. Instead of improving their product or marketing, the dairy industry has sought out the government’s help to quash their new competition, and the FDA seems willing to comply. However, despite all the bluster suggesting deception, less than 10 percent of people actually believe these non-dairy alternatives actually contain cow’s milk. Basically the same percentage of people, 8 percent, believe "organic milk" is made of plants. So does that mean "organic milk" is deceptive too? Of course not.

There is no widespread deception. The dairy industry just wants protection. It’s a shame the FDA is participating in this assault on freedom of choice and market competition.

This is yet another example of Gottlieb turning his back on the encouraging promises he made as a fresh, new commissioner of the FDA. In the case of the attempt to crush competition with the dairy industry, it looks an awful lot like the swamp that President Trump so frequently, and rightly, rails against.

With Gottlieb’s now-imminent departure, the FDA has an opportunity to enact positive changes in 2019 by returning to the deregulatory vision laid out by the fresh-faced Gottlieb in 2017. It should do so by rolling back burdensome regulations, not enacting new ones. The FDA should focus on deregulatory actions of the type that got President Trump elected on his promise to “drain the swamp.” To do so, it must abandon the swamp. Perhaps the entry of a new commissioner at the FDA is just the right time for such a course correction.