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WSJ: FDA deeming regulations may still be eligible for repeal by Congressional Review Act

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Depending on which vaping advocacy group that you ask, there is enormous confusion as to whether the FDA deeming regulations could essentially be overturned overnight via the Congressional Review Act of 1996 (CRA). Some people say “absolutely not” while others remain hopefully optimistic.

The debate stems from a single issue – the publication date of the FDA deeming regulations on the Federal Register.

According to the CRA, legislative rules, regulations, and executive orders implemented within the last sixty days of any presidency can possibly be quickly repealed by Congress with a simple majority vote. For the Obama Administration, this threshold date is identified as June 13, 2017.

However, the FDA deeming regulations were published well before this date on May 10. As a result, the considered opinion within the vaping community is that the FDA deeming regulations are ineligible for CRA repeal. But, according to a recent report by the Wall Street Journal (WSJ), the vaping community may be wrong!

Todd Gaziano and the Congressional Review Act

The WSJ story involves an interview with a Mr. Todd Gaziano, a senior fellow in constitutional law at the Pacific Legal Foundation and, coincidentally, one of the original writers of the Congressional Review Act of 1996. Gaziano apparently worked as legal counsel for one of the CRA’s congressional sponsors, Rep. David McIntosh, at the time. Gaziano apparently made his way to Capital Hill last Wednesday for a meeting with GOP leaders about the intricacies and complexities surrounding the CRA, and this is what he told them.

“ Mr. Gaziano told Republicans on Wednesday was that the CRA grants them far greater powers, including the extraordinary ability to overrule regulations even back to the start of the Obama administration. The CRA also would allow the GOP to dismantle these regulations quickly, and to ensure those rules can’t come back, even under a future Democratic president. No kidding.”

“Here’s how it works: It turns out that the first line of the CRA requires any federal agency promulgating a rule to submit a “report” on it to the House and Senate. The 60-day clock starts either when the rule is published or when Congress receives the report—whichever comes later.”

The ”report” in question is a required guideline report instructing Congress how to enact the related piece of legislation. In the case of the FDA deeming regulations, if the FDA did not provide Congress with these guidelines, then the May 10 publication date is useless. The clock doesn’t start ticking until all guideline materials are submitted – not when the regulations are actually published.

Were these guideline materials sent to Congress? If you read the FDA’s website on the issue, the answer is ‘No!” By reading the entries on the Tobacco Products page, the last time that the FDA sent anything to congress about anything tobacco- related was way back in 2013. While this is all speculation at this point, vapers should rest assured. Even the nation’s own Congresspersons are confused about how the Congressional Review Act truly works – which is probably why they called Mr. Gaziano in for a meeting in the first place.

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