Congress Takes A Step Toward Saving the Vapor Industry

House committee approves an amendment that changes the FDA's "grandfather date"

United States Capitol

Vapers are thrilled about an amendment to a Congressional bill introduced Tuesday, but the fight to prevent the FDA from crushing the vapor industry has really only just begun. And there are serious doubts whether the amendment will stay intact throughout the legislative process.

Reps. Tom Cole (R-OK) and Sanford Bishop (D-GA) introduced the the amendment to the Agriculture Bill, and the House Committee on Appropriations approved it by a 31-19 vote. (Rep. Cole is also the author of HR 2058 — usually called “the Cole Bill” — which shares some language with this amendment. However, the amendment is not “the Cole Bill,” as has been suggested by many.)

Fixing the deeming grandfather date

The amendment approved Tuesday, like HR 2058, provides a temporary fix to the problem of the FDA deeming regulations’ grandfather date (sometimes called the predicate date) for vapor products. Without congressional action, the FDA can require that all vapor products introduced after February 2007 go through a complex and very expensive process to be approved for sale. Estimates of the cost of completing a Premarket Tobacco Application range from $300,000 to $10 million per product.


So the effort to eliminate the 2007 date from the regulations is crucial. The Cole-Bishop amendment changes the grandfather date to 30 days after the deeming regulations’ release. Getting that into a bill that will eventually pass (as the Agriculture Bill must) is a huge first step. But it is just a first step.

“This is only the start of a long fight”

Legistlation Confirm

Now that the appropriations committee has approved the language, the bill goes to the House floor, where further amendments can be offered by any representative. Once those are resolved, the bill is voted on by the full House. It’s then sent to the Senate, where it is assigned to a committee, amended, and then sent to the Senate floor, where again the bill can be amended by any senator.

After the Senate eventually passes the bill, it is sent to a conference committee from both the House and Senate to reconcile the two versions. Then it returns to the House for a vote to accept the conference committee’s revised version, then again to the Senate. Finally, after both houses of Congress approve it, it goes to the President for signature, and becomes a law.

Clearly, there are many opportunities for the amendment to be changed, or even dropped entirely, through this long process. Lobbyists working for vapor opponents will be working to prevent the Cole-Bishop amendment from making it through this maze, and lobbyists for vapor products will be fighting for it.

“This is only the start of a long fight to keep this provision in the overall budget bill,” Gregory Conley, president of the American Vaping Association, stated in an AVA press release. “The industry and its consumers need to put forth a massive effort to ensure that both Democrats and Republicans do not lose sight of the importance of this policy change.”

Were compromises necessary?

Some tradeoffs were made to garner wider and bi-partisan support in Congress. The amendment includes significant concessions to vapor skeptics. The biggest one may be that the language includes a call for the FDA to regulate batteries, but it also requires product standards and labeling rules, and registration of retailers. Additionally, there are restrictions placed of advertising. Vapor advocates may not be able to reverse course on these compromises.

Vapers are right to be excited that some members of Congress are finally taking notice, and recognizing that vaping is saving lives and creating business success stories. But the struggle to legitimize the vapor industry and the use of e-cigs is far from over.

Jim McDonald
I spend most of my time studying the regulatory, legislative and scientific challenges to vaping, advocating for our right to exist, and talking with others who do the same. Consider me a source for information, and feel free to agree or disagree with anything I say. I love good coffee and sweet Michigan cherries. My childhood hero was Gordie Howe.