This week, U.S. District Court Judge Amit P. Mehta denied a motion by a group of six anti-tobacco organizations to intervene in a lawsuit by cigar manufacturers against the FDA. The lawsuit challenges the legality of parts of the new regulation they face after the FDA asserted jurisdiction over (“deemed”) cigars and vapor products. It is based on the right to free speech, specifics of the Tobacco Control Act, and other constitutional and statutory arguments. If successful, it could have important implications for the vapor industry. The anti-tobacco groups sought to become full parties to the lawsuit, able to act alongside the FDA as defendants.
Their petition was denied. The petitioners are still free to file amicus briefs in the case, but they cannot act as full legal defenders of the regulations.
The motion was made by the Campaign for Tobacco Free Kids, the Truth Initiative, the American Cancer Society, the American Heart and Lung Associations and the American Academy of Pediatrics. They basically claimed to be stakeholders, asserting that if the manufacturers prevailed in their attempt to block warning label requirements then, as stated in the court’s opinion, “they will be forced to spend resources educating the public about the risks of tobacco use that otherwise would be conveyed by the warnings themselves.”
The tobacco wars have long been characterized by absurd notions of who the stakeholders are. The real stakeholders – entities who are actually materially affected by the policies – are the consumers first, and the various elements of the industry second. A few other actors might be considered a very distant third. But merely having a special-interest political opinion about what should be done does not make someone a stakeholder. Despite this, self-appointed busybodies have managed to get themselves considered a stakeholder, often the primary stakeholder.
Every important political fight includes vocal special-interest groups. They have a right to offer their opinion and to mobilize political support. But the tobacco wars, along with other wars over what people can do with their own bodies, have the odd distinction of giving these special-interest groups more weight as “stakeholders” than the people whose bodies are actually at stake.
The FDA clearly thinks of the stakeholders for tobacco policy as consisting of only “public health” groups and the industry. These are the only parties they deal with except to nominally fulfill requirements to hear comments. Only once in all the hearings and meetings about creating e-cigarette regulations was a consumer representative given a seat on the podium. [Disclosure: it was I, on behalf of CASAA.] The FDA’s Center for Tobacco Products has a scientific advisory board with a slot reserved for a consumer representative. That slot has always been filled by a rabid anti-tobacco activist, never a consumer or consumer representative.
Though the word “stakeholder” never appeared in his opinion, Judge Mehta disagreed with this inappropriate interpretation of the concept.
The opinion cites case law that petition to intervene must be based on a realistic threat to a legally protected interest. Specifically for the case of an organization, this must be a threat to its operations and ability to provide services. The case law specifically excludes from these protected interests an organization merely having to expend more resources to successfully communicate its preferred messaging. This is basically equivalent to saying intervenors must be genuine stakeholders. They cannot merely be opinionated onlookers with a political agenda whose success might be affected by the outcome of the case.
In decisively denying that the petitioners met this standard, Judge Mehta effectively declared that they are not stakeholders. He referred to the goals of the petitioners as “laudable,” so this cannot be dismissed as bias against their political positions. It is a clear judicial opinion that they have no basis for claiming to be stakeholders.
While this is a very specific technical decision that has limited (though perhaps not zero) value in establishing broader precedent, it has substantial symbolic importance. The real stakeholders could seize upon this as a basis for challenging the improper stakeholder status that is granted to anti-tobacco activist groups. Even if there is no apparent way to use the decision to force a change, the petitioners – in their failure – have handed defenders of consumer interests a very potent talking point.
In the battles to protect vapor products, and in the larger tobacco wars, there has been remarkably little effort to oust the pretenders to stakeholder status and give consumers their proper status as the primary stakeholder. There are many attempts to assert that status, of course, but almost no attempt to fight the problem at its root. Consumer groups and small businesses are busy putting out fires. Major tobacco companies have been part of the problem, consistently referring to “public health” groups as stakeholders and making clear they prefer negotiating with that special interest group over addressing the interests of their own customers.
Interestingly, another requirement for a third party intervention in a lawsuit is that no party already in the lawsuit can adequately represent the petitioners’ interests. The ruling notes that petitioners perceived “recent indications that Defendants may not aggressively defend the [Rule], or may seek to alter or rescind the Rule.” That is, the anti-tobacco groups effectively expressed they were concerned that the FDA might decide there is some merit to the lawsuit. They were afraid that the FDA might choose to do the right thing and back off, and they wanted standing to make sure they could prevent this.
The FDA expressed neither support for nor opposition to the petition. It may never be clear whether they quietly resented the petitioners for trying to tie their hands, or whether they welcomed another opportunity to use outside pressure to provide cover for taking extremist positions.