A Federal Bill is Awaiting Vote to Ban Flavored E-Cigarettes and Taxing E-Cigarettes

On April 18th, 2019, Representative Frank Pallone Jr. introduced H.R. 2339 (D-NJ-6). This bill is called "Reversing the Youth Tobacco Epidemic Act of 2019."


On Thursday, February 27th, 2020, this bill will be presented to vote in the House of Representatives. If this bill were to pass the House, it will also need to be presented to the Senate for voting.


Here is a breakdown of the bill, what all it entails, what that means for those who vape, and what you can do to help.


This bill has six sections overall.


The first section is labeled "Cigarette graphic health warnings." This method is used in 28 countries currently. The United States is attempting add to this list.


The second section is named "Advertising and Sales Parity for all Deemed Tobacco Products." This is requesting for a final ruling by the Human Health Services (HHS) and the Commissioner of Food and Drugs (FDA Commissioner) on advertising.


The third section reads "Reducing Child and Adolescent Nicotine Addiction." This section is a bit heavy, so let's break it down by subsection.


First and foremost, this is applied to all tobacco products.


It then goes into minimum age restriction. We are all aware at this point that as of December 20th, 2019, the federal minimum age to purchase any tobacco product is now 21 years of age and older. This goes into some more detail though.


It will be unlawful for any retailer, manufacturer, distributor, third-party marketplace or any other commercial entity to sell a tobacco product to any person younger than 21 years of age. To ensure compliance, a retailer, at minimum, shall verify by means of a government-issued photographic identification the age of the individual purchasing products. This will go into effect no later than 180 days after the date of enactment of the Reversing the Youth Tobacco Epidemic Act of 2019.


Basically, all this says is that retailers are required by law to check government identification. This identification can be a driver's license, state identification card, passport, Real ID or military ID.


The next subsection is "Prohibition against remote retail sales." At first, this sounded like we couldn't have vape shops or tobacco shops. Instead it's a prohibition on online sales/mailed orders. No later than 2 years after the Reversing the Youth Tobacco Epidemic Act of 2019 (which I'm going to abbreviate to RYTEA19), there shall be a final regulation prohibiting the sales of all tobacco products, including electronic nicotine delivery systems (ENDS), other than retail sales through a direct, face-to-face exchange between a retailer and consumer.


Then, we go into "Prohibiting Flavoring of Tobacco Products." Beginning 1 year after RYTEA19, a tobacco product or any of its components or accessories shall not contain an artificial or natural flavor (other than tobacco) that is characterizing flavor of a tobacco product, tobacco smoke or an herb or spice. This is bill outlines the following flavors: menthol, mint, strawberry, grape, orange, clove, cinnamon, pineapple, vanilla, coconut, licorice, cocoa, chocolate, cherry or coffee. That being said, the Secretary of the Human Health Services can take action under this section to any artificial or natural flavor, herb, or spice. This means that the Secretary of the HHS can say no to any flavor, not just the ones outlined here.


This also has an exception though. ENDS or any component or part of such product may contain as a constituent (including a smoking constitutent) or additive, an artificial or natural flavor or herb or spice, that is characterizing flavor of the tobacco product or tobacco smoke as long as the Secretary of HHS and FDA Commissioner determines that such characterization of flavor will be appropriate for the protection of public health. The findings for appropriate protection of public health are outlines as: (1) will significantly increase the likelihood of smoking cessation among current users of tobacco products, (2) will not increase the likelihood that individuals who do not use tobacco products, including youth, will start using such products, and (3) will not increase the likelihood of harm to the person using the product.


What this means is that ENDS products will have to be proven to be less harmful, used as a smoking cessation product and not enticing to those who do not currently use tobacco products.


The next section is called "Fees Applicable to all Tobacco Products." There wasn't a lot of information here, other than an increase in total amount of money. Instead of $712,000,000, they want to increase to $812,000,000.


Another small section stating "Regulation of Products containing Synthetic Nicotine." All that is here is to issue a final rule within 2 years of RYTEA2019 on synthetic nicotine. They do include a definition of synthetic nicotine, which reads, nicotine that is not made or derived from tobacco.


The final section is labeled as "Advertising of Tobacco Products." Another dense section, so let's split it up a bit.


The first subsection targets ENDS. It shall be unlawful to market, advertise or promote any ENDS in a manner that appeals to an individual under 21 years of age. It shall also be unlawful to market, advertise, promote or endorse, or to compensate any person for the marketing, advertising, promotion or endorsement of any ENDS without clearly disclosing that the communication is an advertisement, unless the communication is unambiguously identifiable as an advertisement.


The next two subsections are enforcing these advertising laws. The enforcement can be done at the state and federal level. On the federal level, it would be through the FDA Commissioner, while at the state level, it would be the state Attorney General.


This section states that a civil action may be pursued for unfair or deceptive acts or practices. There is a limitation though. If federal government has instituted a civil action, no state Attorney General may bring an action during the pendency of the federal action. Basically, you cannot be brought to court on the state and federal level, although it sounds that it can be done separately.


The final subsection is noted as "Report to Congress on Tobacco Product Advertising." The FDA Commissioner would submit to Congress a report relation to each category of products that contains the following information: (1) information on domestic sales and advertising and promotional activity by the manufacturers that have the largest market shares of the product category and (2) such recommendation for legislation as the Commission may consider appropriate. These categories are defined as cigarettes, cigars, smokeless tobacco and ENDS.


The end of the bill goes over definitions as well. Most of the definitions are listed in the Food, Drug and Cosmetic Act (link here: https://www.fda.gov/tobacco-products/rules-regulations-and-guidance/section-900-federal-food-drug-and-cosmetic-act-definitions).


Then, we move into H.R. 4742. This was introduced by Representative Thomas Suzzi (D-NY-3) on 10/18/2019. It has been read in the House on 02/21/20. The bill is named "To Amend the Internal Revenue Code of 1986 to Imposed a Tax on Nicotine used in Vaping, etc."


On taxable nicotine, manufactured in or imported into the United States, there shall be imposed a tax equal to the dollar amount specified in section 5701(b)(1) (or, if greater, $50.33), per 1,810 milligram of nicotine (and a proportionate tax at the like rate of any fraction part thereof).


Taxable nicotine would be any nicotine that has been extracted, concentrated or synthesized. Effective date would be 90 days after the date of enactment of this Act.


Now that we've talked about all of these bills, let's talk about what we can do.


1. Join Twitter. Twitter has a lot of useful information, but also is read by our representatives, Senators, Congressmen and other public officials. Check out this blog post to understand how to navigate Twitter. https://www.yes-i-vape.com/post/six-ways-to-advocate-for-vaping-without-attending-a-rally


2. Call your Representatives. This bill is going to pass without your help. We need to be having discussions. Call your Representatives and tell them to oppose these bills. You can find your Representatives here: https://www.house.gov/representatives/find-your-representative


3. Join CASAA. CASAA or the Consumer Advocates for Smoke-Free Alternatives Association keeps up with all of the latest bills happening. It's free to join! http://www.casaa.org/


We need your support right now. Share this with your friends, your family, you co-workers, your local vape shops, and anyone else that vapes. These bills will shut down the vaping industry if passed.


Signed,


~Mik



Questions? Comments? Let me know!

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