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FDA deeming regulations make GOP ‘wish list’ of items to repeal in first 100 days

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As the Trump Administration prepares to take office on January 20, the GOP majority Congress is compiling a list of over 200 pieces of legislation for repeal in his first 100 days. Appearing as Item #59 is the FDA deeming regulations which threaten to bankrupt thousands of small business owners in the U.S. vaping community.

The document is entitled First 100 Days: Rules, Regulations, and Executive Order to Examine, Revoke, and Issue is compiled by the House Freedom Caucus. It contains some rather interesting entries for review, including something called the Clothes Washer Energy Conservation Standards and the SuperTruck I Initiative. But the inclusion of the FDA deeming regulations is considered an important next step in winning the War on Vaping.

The Congressional Review Act of 1996

The National Law Review recently published an assessment of the possible rescission of these e-cig regulations by Congress. In the article, the authors discuss a little-known law called the Congressional Review Act of 1996 (CRA) which allows Congress to overturn certain regulations enacted within the last 60 session days of the preceding administration.

  • The National Law Review article states that legislation “as far back as May 2016” may be eligible.
  • The website for at least one high-ranking official, Congressman Bobby Scott of Virginia, similarly says “60 legislative days would reach back until May of this year.”
  • Other agencies like the Federation of American Scientists offers a conflicting threshold date of June 13.
  • Meanwhile, the FDA deeming regulations were effectively published on May 10, 2016, leading many in the vaping community to wonder if they would indeed be eligible for CRA repeal.

Some vaping advocates claiming close political ties in Washington believe that the May 10 publication date of the FDA deeming regulations automatically and categorically voids them from possible future inclusion in the Congressional Review Act. Others are still lobbying to have them included. And the deeming rules’ recent appearance on this newly published “wish list” by the House Freedom Caucus only helps plead their case.

FDA deeming regulations: Nothing is set in stone

Is the May 10 publication of the FDA deeming regulations the proper date that the vaping community should be focusing on when discussing a quick CRV repeal? Most agree that it mostly likely is.

Still, even if the FDA deeming regulations are not eligible, all hope is not lost. The deeming rule can still be called for a separate vote, and Senator Ron Johnson along with Congressman Duncan Hunter of California are already leading this charge.

Or the newly appointed FDA Chief, who many believe will be Trump’s top pick for the post Jim O’Niell, could still work his “revisionary magic” from within the agency itself. It just might take a little more time and energy - and a great deal of patience.

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