FreedomWorks Foundation’s Formal Comment on FDA’s Proposed Smokeless Tobacco Ban

Today, FreedomWorks Foundation’s Regulatory Action Center (RAC) submitted comments to the Food and Drug Administration (FDA) opposing the proposed Tobacco Product Standard for N-Nitrosonornicotine (NNN) Level in Finished Smokeless Tobacco Products.

The RAC’s primary concern with this proposed regulation stems from the fact that FDA sought to limit public knowledge of this proposed rule to the greatest extent possible. This rule, which the smokeless tobacco industry contends would effectively ban the production and sale of most all smokeless tobacco products produced in the United States, was publicly announced on January 19th, 2017—the day before the inauguration of President Trump. Further, FDA appears to have given advanced notice of this rule to certain anti-tobacco groups while withholding information from industry stakeholders and the public at-large. In doing so, our analysis contends that FDA not only violated the spirit of Congress’ checks on the executive branch, but may have explicitly broken the law by failing to provide advanced notice of this rule.

Finally, this rule is a clear-cut example of a phenomenon known as "midnight" rulemaking. This occurs when outgoing administrations rush through a large volume of controversial rules prior to a new president taking power. The record shows that these rules are generally poorly formulated and result in ineffective and costly public policy.

For these reasons, FreedomWorks Foundation’s RAC is compelled to oppose this proposed rule and has suggested FDA withdraw it immediately. Read our full comments here or in the attached document below.