Unelected bureaucrats are once again trying to decide what is and isn’t good for you. The FDA’s current attempt to ban Juul’s products from the market flies in the face of overwhelming evidence against the need for such bans and ignores both the ineffectuality of total bans and the abilities of the black market.

The FDA has used its discretion granted to it by Congress to apply what is known as an MDO, or a market denial order. MDOs essentially order specific products or lines of products off the market for a variety of reasons. Improper MDOs can be staved off, but to do that companies have to take their case to federal court. And that’s exactly what Juul has done.

Thankfully, Juul’s application to the court was granted. For now, the ban has been halted. Hopefully, the court will side with Juul. Even if it does, however, it’ll only be a Band-Aid on a much more fundamental and deep-rooted issue with the FDA. So long as an unelected federal agency has the ability to regulate the nation’s markets, problems like this won’t go away.

It’s especially frustrating given that the FDA has no concrete justification to remove these items from the market. In its court filing, Juul stated that it had provided almost 6,000 pages of data which indicated that the harsh chemicals that the FDA was using to justify its draconian measures were simply untraceable within the aerosol produced by Juul products. Following this, the FDA appears to have backflipped and is now stating that there is a special need to investigate the product further.

The FDA claims that the ban would help reduce respiratory issues and damage, no doubt betting the ban will ride the same wave of public opinion that was initiated back in 2020, when a string of lung-related issues was incorrectly attributed to nicotine vapes. This has long been disproven.

The CEI found that the epidemic in 2020 was actually caused by black market marijuana vapes. The CDC themselves knew this and admitted to it publicly.

The FDA should be wary of banning legitimate products, as it will only increase demand for dangerous black-market alternatives.

This black market is already thriving across the U.S.

Look at Massachusetts, whose law enforcement made 213,550 seizures of illicit vaping products in 2021 alone. The State Department of Revenue admitted this massive influx was likely due to an expanding black market.

These illegal products are already here. There’s already a strong black-market infrastructure in place to satisfy demand. A prohibition on a legitimate company like Juul means a massive payday for organized crime.

This isn’t just speculation — this is clearly evident from other attempts to prohibit goods en masse. One only needs to look at the proliferation of the mafia and the black market trade of alcohol which coincided with the speak-easy movement in 1920s prohibition.

The option to regulate these products should be left to the elected representatives of the communities and states in which they’re consumed.

Unfortunately, the administrative state shows no signs of slowing its growth. The Supreme Court may have restricted federal agencies in their ability to regulate entire markets with delegated powers (see the recent EPA decision), but that’s no help in this instance, as the power to regulate drugs for the purpose of public health is explicitly granted to the FDA.

Reform will have to come through congressional legislation. That’s why it’s essential to fight for change in Congress. Unelected bureaucrats in the FDA shouldn’t have the power to decide what people can and can’t consume. The decision to Juul should be left in the hands of the individual consumer.