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The unconstitutionality of the FDA deeming regulations: Who is Leslie Kux?

When the U.S. Food and Drug Administration (FDA) first announced in 2015 that all vapor products would forever be re-classified as tobacco products, the news took the vaping community by storm.  How can a life-saving invention specifically designed to be 100 percent tobacco-free fall under such an obviously unsuitable classification?   Surely, the FDA would soon see the error of its ways, and everything would go back to normal.

Nearly five years, later, we’re still waiting.  The battle over the validity and legality of the FDA deeming regulations has turned into an all-out war.

In April of 2019, The Hill ran a story accusing the FDA of implementing nearly 2000 rules and regulations that are essentially unconstitutional.  According to the report, approximately 98 percent of all FDA regulations implemented since 2001 are unconstitutional.  To illustrate the absurdity of it all, the authors chose to focus solely on the illegality of the FDA deeming regulations as an example.

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According to federal law, the only people within the federal government who have the constitutional authority to make laws (or sign off on them) is an “officer of the United States.”  And that “officer” is very clearly defined to include the following three criteria.

  • The officer must be nominated by the President of the United States
  • The officer must be approved by the Senate
  • And in the specific case of the FDA deeming regulations, the officer must be “hired by the Department of Health and Human Resources Secretary pursuant to congressional authority.”

Unfortunately, it appears as if the FDA has been basically ignoring these legal requirements as set forth by the constitution for nearly two decades.  At least, that’s what several constitutional scholars and the Pacific Legal Foundation believes.  The latter has even filed a lawsuit on behalf of all Americans while simultaneously publishing a lengthy report that alleged proves the unconstitutionality of some 2094 individual FDA regulations.   

Who is Leslie Kux, and what does this have to do with vaping? 

So, who signed off on the FDA deeming regulations?  The woman responsible is named Leslie Kux, and she meets none of the three constitutional criteria for being an “officer of the United States.”  Even though she has worked at the FDA for over 30 years, Ms. Kux has never nominated by a president – any president. And since she’s never been nominated, she has also never undergone the confirmation process in the Senate.  Therefore, legally speaking, she is in no way an “officer of the United States. 

Want more proof of these constitutional requirements?   Check out the U.S.Constitution’s Appointments Clause

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(Image courtesy of IPTV)

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