The Washington Post - 18.09.2019

A4 EZ SU THE WASHINGTON POST.WEDNESDAY, SEPTEMBER 18 , 2019

nated $500,000 to Trump’s inau-

gural committee and was a major

contributor to Pence’s “Great

America” committee. It also hired

Jeff Miller, who has close ties to

Pence, to lobby on tobacco and

e-cigarette issues. Miller has al-

ready reported bundling more

than $1 million in contribution’s

to the Trump 2 020 c ampaign.

Despite those broad invest-

ments, Gottlieb, the former FDA

commissioner, said he doesn’t

think Juul h as b een very effective.

“Juul took a shotgun approach

to try to lobby t his issue,” h e said in

a recent interview. “They were nei-

ther targeted n or effective in w hat

they did.”

He s aid h e thinks t he c ompany’s

efforts hurt t he whole industry.

Other e-cigarette companies

with ties to deep-pocketed tobac-

co c ompanies include Vuse, which

is owned by tobacco giant Reyn-

olds American, a nd Swisher Inter-

national, a cigar maker that also

sells e-cigarettes. Both are repre-

sented by Brian Ballard, a veteran

Florida lobbyist who represented

Trump’s businesses there and

worked on the president’s 2016

campaign.

Reynolds paid Ballard’s firm

$1.1 million to lobby entities in-

cluding Congress, White House,

HHS and the vice president’s of-

fice since 2017. Swisher, which

hired Ballard in April, has so far

paid the firm $60,000, records

show. Reynolds American’s PAC

donated $15,000 to committees

for the Trump campaign and the

Republican National Committee

in 2016.

While lobbyists are not re-

quired to report exactly h ow m uch

they spend on specific issues,

much of the money would prob-

ably have gone to work on vaping-

related issues — including

Trump’s proposal in March for

$100 million a year in user fees on

the e-cigarette industry, and bills

related t o age restrictions.

Philip Morris International, for

example, won FDA approval in

April to market its “heat-not-

burn” tobacco product called

IQOS in the United States, but the

agency has not yet ruled o n wheth-

er the company can describe it as a

“modified r isk tobacco product” —

in other words, safer than a ciga-

rette. The company reported

spending $2.1 million in the third

quarter of last year to lobby on

issues related t o that.

Some other firms say their lob-

bying also supports legislation

that would raise the legal age for

smoking a nd vaping to 21.

“We prefer clean, a.k.a. straight-

forward, bills that do that,” said

Altria spokesman Sutton.

[email protected]

[email protected]

[email protected]

[email protected]

Anu Narayanswamy contributed to

this report.

“The only players that are going

to be left are the very largest com-

panies which are, essentially, the

tobacco companies,” said Michael

Siegel, a professor of community

health sciences at Boston Univer-

sity. “Those are the only compa-

nies that are going to have the

resources to put in the applica-

tions that are going to be required

by the FDA. I’m sure that they’re

already getting these applications

together.”

Juul has said it supports “the

need for aggressive category-wide

action on flavored products,” and

will comply with the final FDA

policy, w hen i t takes effect.

That d oesn’t m ean, Juul-watch-

ers say, it won’t try to change the

policy before it’s f inalized.

Last y ear, under mounting FDA

pressure, Juul voluntarily stopped

selling all flavors but mint, men-

thol and t obacco in r etail o utlets —

and then watched as competitors

and counterfeiters filled the void

with their own sweet and fruity

products. Since then, Juul says it

has been eager for a government

crackdown on those products to

level the p laying f ield, as well a s to

curb youth vaping.

Other big e-cigarette manufac-

turers m ay b e hesitant to battle the

administration head-on, as well.

But they will almost certainly

speed up applications to the FDA

to try to get soon-to-be-banned

flavored e-cigarettes back on the

market.

Survival of the biggest?

If any company might be posi-

tioned t o navigate or moderate the

policy, it would be Juul. Its staff

and consultants include a who’s

who of Trump world, including

Josh Raffel, a former spokesman

for Jared Kushner and Ivanka

Trump; Johnny DeStefano, a for-

mer counselor to the president;

Rebeccah Propp, former director

of media affairs for Vice President

Pence, and Te vi Troy, who worked

in the George W. B ush a dministra-

tion along with Alex Azar, the cur-

rent health and human services

secretary.

DeStefano, who i s a Juul consul-

tant, remains in touch with cam-

paign and White House officials,

although h e is n ot allowed to lobby

them for Juul under White House

ethics rules. The other former

Trump administration officials

also are not allowed to contact

their former White House col-

leagues on b ehalf of Juul.

In 2017, the start-up had just

two lobbyists. Now, it has at least

10 times that number, including

former s taffers for House speakers

Paul D. Ryan and John Boehner,

according to federal lobbying dis-

closures. The company has al-

ready spent nearly $2 million in

the first two quarters of this year

on lobbying, up from $1.64 million

for a ll o f last year.

The political action committee

for Altria Group, meanwhile, do-

to jump into action.

On Sept. 11, Trump was present-

ed with a number o f options, rang-

ing from doing nothing to remov-

ing almost all vaping flavors from

the marketplace. The president,

who had previously expressed no

opinions about vaping, had also

been reading stories about people

dying from a mysterious lung dis-

ease, say White House officials.

Faced with a perfect storm of

worsening youth vaping numbers

and fatal illnesses potentially re-

lated to vaping, he chose the

toughest course.

The policy, a s laid o ut last week,

would bar sales of almost all fla-

vored e-cigarettes — mint and

menthol, as well as sweet and

fruity ones — in stores and online.

The products would not be per-

mitted back on the market until,

and if, they received FDA approv-

al. Only tobacco-flavored vapes

would be e xempt.

Officials said the guidance

would be published in several

weeks and go into effect 30 days

after that. Flavored products

would have t o come o ff t he shelves

then. Manufacturers could seek

FDA approval to bring their prod-

ucts back to the marketplace, but

it’s far from clear they would be

successful. Those manufacturers

had already faced a May 2020

deadline for such applications,

which among other things would

need to s how whether the p roduct

would make it less likely adults

would smoke regular cigarettes

and not entice young people to

start smoking.

But under that earlier plan,

companies could have kept their

products on the market for some

period of time while the agency

weighed approval.

products, giving vaping foes new

ammunition to p ress their case f or

a crackdown.

Melania Trump began express-

ing concerns about e-cigarettes,

according to senior White House

officials, and Ivanka Trump also

got involved i n the conversation.

Some White House aides and

political advisers were also con-

cerned the vaping issue could be-

come a 2020 campaign problem.

“Juul has created more public

outrage i n a shorter period of t ime

than any other company I can

think of,” said Matt Myers, presi-

dent of Campaign for To bacco-

Free Kids. “When you p rey on mid-

dle-class white kids, Republican

or Democrat, you will make a lot of

people angry.”

As t he number o f those illnesses

rose, Azar got new data right after

Labor Day showing that 27.5 per-

cent of high schoolers i n 2019 said

they had used e-cigarettes in the

past 30 days, u p from 20.8 p ercent

the year before — the second big

jump in two years. The data also

pointed to the surging popularity

of mint and menthol e-cigarettes.

Alarmed, Azar and other top

administration officials, includ-

ing White House counselor Kelly-

anne Conway, domestic policy

chief Joe Grogan, acting FDA

Commissioner Norman “Ned”

Sharpless and adviser Ivanka

Trump had two meetings on the

issue without Trump, including

one o n Sept. 9.

That same day, Melania Trump

tweeted she was “deeply con-

cerned a bout t he growing e pidem-

ic of e-cigarette use in our chil-

dren.”

Officials k ept a close hold o n the

information, strenuously avoid-

ing l eaks that w ould s pur lobbyists

help adult s mokers quit cigarettes.

“E-cigs have become an almost

ubiquitous — and dangerous —

trend among teens,” h e said t hen.

Over the n ext few months, Gott-

lieb met with e-cigarette makers,

demanding they take steps to re-

duce the use of their products by

minors and threatening sales re-

strictions and tighter r egulation.

Around the time he announced

his departure in March, he sum-

moned the heads of Juul and Al-

tria to a meeting where he accused

them of reneging on commit-

ments t o quell teen use, according

to people familiar with the discus-

sions. He also said the companies

were trying t o undermine t he FDA

by going over his head to the

White House, where the compa-

nies found a more sympathetic

ear, they s aid.

Juul says it has supported pol-

icies to restrict youth vaping but

declined to comment on that

meeting. Altria spokesman David

Sutton said it has consistently s up-

ported administration efforts to

reduce teen vaping.

On the way out the door, Gott-

lieb also proposed sweeping sales

restrictions — but not a ban.

Health and Human Services Sec-

retary Alex Azar promised to con-

tinue the anti-youth-vaping agen-

da, s uggesting o fficials might con-

sider tougher action if youth vap-

ing c ontinued to i ncrease.

Then came a summer of devas-

tating headlines about a mysteri-

ous vaping-related i llness that h ad

sickened 380 people in 36 states

and resulted in seven deaths.

Many of the victims used illicit

marijuana products, according to

health authorities and clinicians.

But officials have not been able to

unequivocally rule out nicotine

istration officials and others with
knowledge o f the efforts.
Market-leading Juul has sent
lobbyists to talk to Hill Republi-
cans but has not yet decided
whether to challenge the ban on
mint and menthol e-cigarettes, its
two biggest moneymakers. The
company might argue to keep its
menthol flavor on the market be-
cause it is legal in cigarettes and it
wants to give smokers an alterna-
tive to menthol cigarettes, a Juul
official said.
“They’re still actively talking to
folks to try to help shape what
happens,” said a former senior ad-
ministration official who said he
has r ecently spoken with Juul lob-
byists. “The fight t hey’re making i s
all about mint and menthol, to be
able to keep it.”
Ironically, the company ac-
cused of igniting the underage
vaping epidemic a few years ago
might benefit from the ban over
the l ong term b ecause the p rohibi-
tion will be even harder o n smaller
competitors, some experts s ay. To -
bacco giant A ltria owns about a 3 5
percent stake in Juul.
Smaller players, such as the Va-
por Technology Association, say
many of its members could not
survive such a ban and v ow a fight.
The group plans t o send h undreds
of vaping a dvocates to s warm C ap-
itol Hill on Wednesday to express
their ire.
“We are going to make it clear
that this is the wrong approach,
that it will literally cut down an
entire industry that has grown up,
with 166,000 jobs, to challenge the
tobacco industry, and they are
mostly small businesses,” said
To ny Abboud, executive director
of the trade g roup.
Vaping advocates and consum-
ers, meanwhile, are bombarding
the White House and members of
Congress, complaining on Twitter
and launching petition drives to
protest the ban, said Greg Conley,
president of the American Vaping
Association.
Some of them were heartened
by a Trump tweet Friday evening
that suggested vaping might, in
fact, be a good alternative to ciga-
rettes, and the ban was simply to
“make sure this alternative is
SAFE for ALL!” a nd to keep e -ciga-
rettes out of t he hands of children.
A senior White House official
said the tweet reflected the presi-
dent being told some supporters
were upset by the ban and did not
signify a policy shift.

‘Public outrage’

Despite its strong deregulatory
approach, the Trump administra-
tion started focusing intensely on
e-cigarettes a little more than a
year ago when then-FDA Commis-
sioner Scott Gottlieb saw data
showing a 78 percent jump in h igh
schoolers using e-cigarettes — a
product ostensibly designed to

VAPING FROM A

BY ROBERT BARNES

Sometimes, Supreme Court
Justice Sonia Sotomayor said re-
cently, people ask how she has
dealt with the arrival of her new-
est colleague, Brett M. Ka-
vanaugh, and the allegations of
sexual misconduct that accompa-
nied his confirmation.
Her answer is not one to which
other liberals have subscribed.
“We are all human beings, we
all have pasts,” Sotomayor told a
judicial conference in Santa Fe
last week, according to a Wall
Street Journal report. “Now,
whether things occurred or didn’t
occur, all of that is irrelevant. It is
yesterday, today is today, and
moving forward, I have to work
with him.”
Revivals of allegations against
Kavanaugh roil the White House,
Capitol Hill and the Democratic
presidential nomination trail.
But at t he Supreme Court, once
you’re in, you’re in. It is a no-roil
zone.
Kavanaugh, 54, has done his
best to keep it that way since his
arrival nearly a year ago. He’s
been an equal-opportunity col-
laborator, in the majority more
than any other justice in cases the
court decided in his first term. He
agreed with some of the court’s
liberal members almost as much
as he agreed with some of the
court’s conservatives, including
Neil M. Gorsuch, the other justice
chosen by President Trump.
Such evenness has brought
grumbles from some conserva-
tives about what they consider
Kavanaugh’s go-slow approach.
He has balanced that by voting in
favor of every important Trump
administration initiative that has
reached the court during his ten-
ure.
Trump responded to allega-
tions against Kavanaugh in a new
book by two New York Times
reporters with a ferocious de-
fense on Twitter. “DO YOU BE-

LIEVE WHAT THESE HORRI-

BLE PEOPLE WILL DO OR SAY.

They are looking to destroy, and

influence his opinions - but

played the game badly. They

should be sued!”

At the Supreme Court, where

nine people are bound together

by life tenure and equally weight-

ed votes: silence.

There is no doubt that justices

— most especially Chief Justice

John G. Roberts Jr. — do not

relish another controversy bound

to intensify the political battle

over what they strive to portray a s

a nonpartisan court.

But there are institutional and

strategic reasons to live and let

live. The court’s decisions will not

be respected unless the court is,

the justices say. And when five

votes determine which view of

the law prevails, today’s adver-

sary can be tomorrow’s ally.

Just a month after the bitter

partisan battle over Kavanaugh

resulted in a 50-to-48 Senate con-

firmation vote last fall, Justice

Elena Kagan spoke to a group of

law students at the University of

To ronto.

Maybe she shouldn’t ask, a

young woman in the audience

said, but how can the court claim

legitimacy on issues such as vio-

lence against women when two of

its members have been accused of

sexual misconduct? She was re-

ferring to Kavanaugh and Justice

Clarence Thomas, whose 1991

confirmation exploded with Ani-

ta Hill’s charges of sexual harass-

ment.

You’re right, Kagan, one of

three liberal women on the court,

told the student: “You should not

have asked me that question.”

She added: “I’m a part of this

institution. I care about it a lot, I

care about my colleagues a lot,

and that’s something I’m not go-

ing to be talking about.”

Thomas recounted in his mem-

oir that, as soon as he was con-

firmed, Justice Byron White came

to welcome him.

“It doesn’t matter how you got

here. All that matters now is what

you do here,” Thomas recalled

White saying.

When Roberts last fall wanted

to directly confront the idea of

the Supreme Court as a political

body, he chose to paraphrase “our

newest colleague” to say that “we

do not sit on opposite sides of an

aisle, we do not caucus in sepa-

rate rooms, we do not serve one

party or one interest, we serve

one nation.”

It’s not surprising that the

court closes ranks. The justices

are linked for life, working closely

together, getting to know one

another’s families. Thomas has

been at the high court nearly 30

years, Justices Ruth Bader Gins-

burg and Stephen G. Breyer more

than 25. The justices can write

brutally about each other’s legal

opinions, but they swear the per-

sonal affection is real.

Kavanaugh was hardly a

stranger when he was elevated to

the high court. He was a former

clerk to White and Justice Antho-

ny M. Kennedy, whom he re-

placed. He served on the U.S.

Court of Appeals for the District

of Columbia Circuit, where Rob-

erts, Thomas and Ginsburg had

served.

He is a longtime insider in the

Republican legal establishment,

yet his clerks went on to work for

almost every Supreme Court jus-

tice.

The bonhomie on the court is

reinforced by tradition. For in-

stance, a new justice is welcomed

with a dinner organized by the

previously junior member. Thus

the stoic Justice Samuel A. Alito

Jr. honored Sotomayor’s heritage

with a Spanish guitar player. As

he promotes his new book, Gor-

such has been telling reporters

how he recruited some of the

“racing presidents” who perform

at Washington Nationals games

for baseball-lover Kavanaugh’s

dinner.

At speaking events this sum-

mer, Ginsburg praised Ka-

vanaugh for hiring only female

clerks for his initial term, which

for the first time meant that more

women than men filled the pres-

tigious jobs. She noted that she

had assigned him an important

majority opinion in a case where

he crossed over to join the liber-

als.

At the Santa Fe event, Soto-

mayor discussed the strategic ad-

vantage of keeping your ideologi-

cal adversaries close.

“There is common ground in

selected areas,” Sotomayor said.

“A nd it’s important not to forget

that because those agreements

are important in building bridges

that help you in the future, per-

haps, in slowing things down.”

In their first year together,

Gorsuch and Kavanaugh di-

verged on issues more than any

pair of justices nominated by the

same president since President

George H.W. Bush’s pair of Thom-

as and former justice David Sout-

er. Gorsuch has tended to side

with Thomas on the right, Ka-

vanaugh closer to Roberts at the

court’s center.

For lawyers on the left, that

means their best hope — even if

slim — is those two. Trump wrote

on Twitter that the continuing

investigations into Kavanaugh

are intended to “scare him into

turning Liberal!”

Kavanaugh has kept a low pro-

file on the court. He’s not a recluse

— he’s coached his daughters’

basketball teams, just as he did in

the past. On Friday, he was at a

ceremony for Judge Naomi Rao,

who took his spot on the D.C.

Circuit.

But he has turned down almost

all speaking engagements. There

was a noncontroversial talk at a

judicial conference in the spring,

and his law school teaching gig

this summer took place about

4,000 miles from Washington, in

England.

As of now, his speaking debut

could be in November, when he

has pledged to address the na-

tional lawyers meeting of the

Federalist Society, the conserva-

tive legal group that has been

instrumental in Trump’s success-

ful nominations to the federal

judiciary.

His friends are braced for other

events beyond his control. At

least two other journalists have

been working on books about

Kavanaugh.

[email protected]

As Kavanaugh allegations agitate Washington, high court remains silent

JONATHAN ERNST/REUTERS

From left, Justices Brett M. Kavanaugh, Neil M. Gorsuch and Elena Kagan at a White House event in

November. The court has closed ranks around Kavanaugh amid accusations of sexual misconduct.

Vaping industry mounts a lobbying blitz after Tr ump’s ban on some products

EDUARDO MUNOZ/REUTERS

Market-leading Juul has sent lobbyists to talk to Republicans on Capitol Hill but has not yet decided

whether to challenge the ban on mint and menthol e-cigarettes, its two biggest moneymakers.