Rewriting the Tobacco Control Act
California Rep. Duncan Hunter is expected to introduce a bill in the House as early as today that would prevent the Food and Drug Administration (FDA) from regulating vape devices and e-liquid as tobacco products. E-cigarettes and vapor products would be removed from the FDA’s deeming regulations, and would no longer be subject to the deeming rule’s expensive and burdensome compliance process.
The bill is titled the Cigarette Smoking Reduction and Electronic Vapor Alternatives Act. (When it is formally introduced in Congress, it will receive a numerical designation. Until then, we’ll refer to it as the Hunter Bill.)
The Hunter Bill would modify the Family Smoking Prevention and Tobacco Control Act (TCA) to force the FDA to reasonably regulate vaping products. It would even change the name of the FDA Center for Tobacco Products (CTP) to the Center for Tobacco Products and Tobacco Harm Reduction.
Other features of the Hunter Bill include:
- Requires e-liquid manufacturers to follow existing standards of the American E-liquid Manufacturers Standards Association (AEMSA) until permanent standads are created by the American National Standards Institute (ANSI)
- Requires device manufacturers to follow strict electronics and battery standards
- Requires products to have serial or lot numbers
- Authorizes the FDA to prohibit advertising and marketing to minors
- Prevents states and municipalities from defining e-cigarettes as tobacco products and creating more stringent restrictions than those in the federal rules
- Authorizes the FDA to inspect manufacturing facilities, and impose penalties on manufacturers not in compliance with rules
- Requires the FDA to rank nicotine products by comparative risk, and report to Congress on the the comparative risk
- Requires the FDA to recommend harm reduction strategies for nicotine and tobacco users
Is the Hunter Bill progress or a distraction?
It is unknown if the Hunter Bill has much support in Congress. Even if Rep. Hunter gets the necessary backing to eventually get his bill through the House, approval by the closely divided Senate would be difficult. In order to engineer the rewrite of a major law like the TCA, the bill would almost certainly need the backing of some Democrats.
While no vaper would argue against the need for rewriting the TCA, there is fear among advocates that the Hunter Bill could distract vapers and vendors from the Cole-Bishop language (or HR 1136 in its standalone form), which could be added as a rider to the Agriculture Appropriations Bill (and included in an omnibus budget bill) this week.
If the Cole-Bishop language is not included in the budget bill — which is easily the vaping industry’s best chance to etch out a somewhat certain future — we will be back to square one, fighting to get something (something even more difficult and complicated!) all the way through Congress.
Vaping360 spoke with representatives of several major vaping consumer and trade organizations, and they were unanimous in their belief that right now Cole-Bishop must be the main focus. If we cannot get the predicate date in the deeming regulations modernized to allow existing products to remain on the market, businesses will begin closing in large numbers. A bill that takes a year or more to pass will not prevent a mass exodus of small- and medium-sized businesses from the market.
That said, no one dismisses the Hunter Bill outright. “We have to start [to fix the TCA] somewhere,” I was told by two different prominent advocates. But both emphasized that the predicate date change must come first. Some think Rep. Hunter understands that, others are less certain.
Don’t be distracted
What is certain is that there has never been a more important time for vapers to call and e-mail elected officials than right now. Our opponents, like the Campaign for Tobacco-Free Kids, are working overtime to prevent Cole-Bishop from getting into the budget bill. If vapers don’t speak up, we may not have another realistic opportunity for a long time.