The Hartland, Wisc., Board of Trustees is poised to make history Monday night when it votes whether to send a resolution to Washington, D.C., that could save the nation's vaping industry, and lives.
The resolution is the result of three full days of hearings to collect evidence that the Food and Drug Administration broke federal law by implementing its vaping regulation without "coordination." The FDA is required under the National Environmental Policy Act of 1976 to discuss economic and other effects the rules may have on local communities.
Enacted last August, the rule treats liquid nicotine products, such as e-cigarettes and all of its components (including batteries, software and cotton) as tobacco products. As such, every single product dating back to Feb. 15, 2007 must get pre-market approval, at anywhere from $330,000 to $1 million per application.
For the FDA, it's purportedly for safety. For Hartland, a village of 9,200 people and home to Johnson Creek Enterprises, a vaping liquid manufacturer and major economic driver, it's devastating.
For village board president Jeff Pfannerstill, it's personal.
"My mother died from emphysema, or chronic COPD, in 2012," he said. "And the most emotional part about watching a person die from COPD is that it is a slow process. It took my mother 3 days of last breaths before she passed away. It is like watching someone slowly drowned and there is nothing you can do but watch. My mother may be here today if vaping was available in the early 2000s."
The testimony collected over three days included similar stories, including Tom Pangborn, director of business development for Johnson Creek Enterprises.
"My dad is a longtime smoker. He's got advanced emphysema and COPD, and that's probably what he's going to die from," he told board members. "If there's anything we can do here in Hartland, it's awesome."
In fact, much of the testimony over the three days centered around vape shop owners and customers and industry advocates, all of whom said vaping was the only method that worked to help them or loved ones quit smoking.
And according to the Centers for Disease Control and Prevention, smoking kills 480,000 Americans per year. Yet the FDA refuses to acknowledge the life-saving potential of e-cigarettes.
"I am disgusted and appalled that something that is 95 percent, maybe more, healthier than cigarettes is being lambasted with a regulation that will severely limit the ability of nicotine addicts to live healthier lives through vaping," said Pfannerstill. "It crosses a line from stupidity to insanity."
The FDA also declined an invitation to testify at the village hearings, instead promising to send a letter to "address the village's concerns."
A letter from the agency may be too little, too late.
Pfannerstill expects the board will approve the coordination hearing findings at tonight's meeting. Once approved, hearing officer Fred Kelly Grant and representatives of the Electronic Vaping Coalition of America, which spearheaded the effort in Hartland, will submit the findings to the FDA and the Department of Health and Human Services for review.
Should the FDA admit it failed to coordinate with the local community prior to enacting the regulation, the rule will be null and void nationwide.
Should the FDA wish to challenge Hartland, the matter would likely head to court.
"We have to cross one bridge at a time, but we are prepared," Pfannerstill said. "We believe the regulation was done without coordination with our village. Do not underestimate Hartland, we are patriots who will fight for what is right."
Kathy Hoekstra (@khoekstra) is a contributor to the Washington Examiner's Beltway Confidential blog. She is freelance writer who formerly worked for Watchdog.org.
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