Republicans’ historic victory this week in taking the U.S. mid-term elections’ big prize – control of the Senate – could have a significant impact on the e-cigarette industry’s relationship with Congress, as power shifts to a party renowned for its traditional stance against what it considers burdensome regulations on business.
The mid-term elections, which come at the halfway point between the four-yearly presidential elections, put up for grabs all the seats in the House of Representatives and about a third of those in the Senate. They do not affect the position of the president, but as he relies on Congress – the House and the Senate – to pass legislation, and on federal agencies overseen by Congress to implement much of it, they do influence his practical power.
Moreover, when the new composition of Congress comes into effect in January, veteran Republicans will be setting the agendas of key Senate committees with oversight not only of the e-cig industry, but also of the federal agencies that regulate it.
Those agendas are expected to take the panels in a far different direction in both tone and substance, judging from previous statements by the law-makers who are expected to lead them in 2015.
As recently as this year, Democratic chairmen of those committees used their power to take federal bureaucrats and the e-cigarette industry to task, with one going so far as to give CEOs of e-cig companies a public tongue-lashing for what he viewed as aggressive marketing tactics to encourage kids to begin using their products.
HELP at hand
No change in committee leadership could be more dramatic than the one already in the works at the Senate Health, Education, Labor and Pensions Committee, sometimes known as HELP.
Long-time Democratic senator Tom Harkin of Iowa, who earlier had announced his retirement from Congress, is expected to be succeeded by Republican Lamar Alexander of Tennessee.
In addition to the partisan switch, the change will be significant because of Harkin’s record on tobacco-related issues.
If nothing else, a hearing Harkin chaired earlier this year on the status of the Food and Drug Administration (FDA) much-anticipated regulation of e-cigarettes showcased the major differences between his leadership and what the industry can expect under Alexander.
While Harkin lamented the agency’s “regulatory black hole” and urged speedier action, Alexander made it clear he did not want the FDA to rush.
He said the FDA should extend its original 75-day public comment period on its proposed deeming regulations. “I would encourage you to do that,” Alexander said. “I think it is more important to get this right.”
The FDA later did extend the public comment period, which is now closed.
At another hearing, Alexander, who serves as the committee’s top Republican, urged the FDA to pick up its pace on reviewing new tobacco products – which could help speed them to market.
Of the more than 4000 applications the agency had received prior to that hearing, he said, it had acted on only 34. Alexander pointed out that the agency continued to collect user fees from tobacco companies to fund its work.
In his victory speech after winning a third term on Tuesday, Alexander set his tone by telling supporters he wanted to do more than continue the dysfunction that many fault for stalling work on important issues in Congress.
“I ran for re-election to be part of a new majority in the Senate that will fix our broken system, get the right things done, and begin to move our country in a new direction. I’ll do this in a way Tennesseans know well – to work with others to get results,” he said, adding that he would be “a senator who knows how to get things done, not just make a speech”.
Another clear example of how the tone and substance on e-cigarettes could change with Republicans taking power in the Senate came in a hearing several months ago in the Senate Commerce, Science, and Transportation Committee.
Chairman Jay Rockefeller, a long-time Democratic senator from West Virginia who also is retiring in January, used the hearing to give his public tongue- lashing to CEOs of NJOY and Lorillard’s Blu over their marketing tactics, which critics say target youth. In unusually sharp criticism, Rockefeller told the CEOs that he was ashamed of them. “You are what’s wrong with this country,” he stated.
He is now expected to be succeeded as chairman by Republican senator John Thune of South Dakota.
Thune, who serves as the panel’s top Republican, did not remain at that hearing long enough to hear that verbal thumping of the CEOs by the chairman.
But while he used his opening statement to state his opposition to smoking in general and his support for keeping e-cigarettes away from children, he also spoke of their potential for reducing harm to current smokers.
“As with most issues that we face in Congress, I believe that more scientific investigation and thoughtful discussion is needed,” Thune said.
“Many e-cigarette companies argue that their product is still an emerging technology and warn that restrictions on e-cigarettes that do not follow the science may inhibit future innovation to create safer production for existing smokers.”
No doubt adding insult to injury for Democrats, Harkin and Rockefeller’s Senate seats were won on Tuesday by Republicans.
With a further election set for one Senate seat, the final results for the mid-terms will not be official until December.
But Republicans already have won more than the six seats needed to give them control of the Senate for the first time since 2007. In the House, they already held power and are expected to add to their majority.
What This Means: The mid-term results do not immediately change the legislative agenda, or the policy positions of the FDA – we won’t see an overnight revolution in U.S. e-cig regulation.
But the political milieu in which legislation will be developed, and within which the agency acts (along with others like the Centers for Disease Control, or CDC), may now be more actively pro-business and less zealous about tobacco control.
– Jim Myers ECigIntelligence Washington correspondent