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February 29, 2020

Pelosi Has to "Whip" Votes to Pass Flavor Ban

After a few twists and turns, House Democratic leaders finally got their caucus together enough to pass a bill that would, if it becomes law, destroy the independent vaping industry. The Protecting American Lungs and Reversing the Youth Tobacco Epidemic Act is not, however, expected to pass in the Senate—and it may not even get a vote.

Before it was debated, HR 2339 had been combined with another bill—HR 4742—which proposes taxing e-liquid nicotine content. Combined, the two bills would:

  • Ban all e-liquid flavors except tobacco
  • Tax the nicotine in e-liquid at 2.78 cents per milligram ($10 on a 30 mL bottle of 12 mg/mL e-juice)
  • Ban online sales
  • Authorize FDA to collect $100 million in vaping industry user fees
  • Order FDA to regulate synthetic nicotine
  • Restrict vapor product advertising exactly as cigarette ads are restricted

But before debate of the combined bills could happen, a preliminary rules vote on Thursday exposed some potential weaknesses in the Democratic Party’s unity.

A letter from several social justice groups—including the American Civil Liberties Union and the pro-harm reduction Drug Policy Alliance—raised questions particularly about HR 2339’s ban on menthol cigarettes. The bill would, if it became law, disproportionately affect minority communities, the groups said, and would prioritize criminalization over public health and harm reduction.

“Based on our concerns,” they wrote, “we urge you to not impose a blanket ban on menthol and related tobacco products. A prohibition on all menthol and flavored tobacco products will not achieve a public health goal of reducing smoking among Black people, young people, or others.”

The letter highlighted issues that had been raised earlier by some Congressional Black Caucus members, and pushed other Democrats to announce opposition to the bill. When the first vote was taken on Thursday, 11 Democrats voted against bringing the bill to the floor for debate, including all four of the freshman Democrats known as “The Squad,” and some other progressives.

But there were enough votes Thursday to move to a debate and full vote Friday. Between the preliminary vote and the final one, House Democratic leadership “whipped” its members to get more support—meaning the leaders applied pressure to get the desired result. Interestingly, all four of The Squad changed their votes to yes on Friday, including the two who are part of the Black Caucus.

But even with additional persuasion, Speaker Nancy Pelosi lost more votes than she gained on the final vote. In the end, 17 Democrats voted against the measure—a significant number of defections—and another seven didn’t vote at all. Five Republicans voted for the flavor ban, and 15 skipped the vote. The final vote was 213-195, close enough that all of the missing Republicans and half of the Democrats could have swung the result.

The debate itself was largely embarrassing. Democrats mostly stuck with their usual Campaign for Tobacco-Free Kids-approved talking points: vaping is a tobacco industry plot to addict kids, flavors are a trick, vapes aren’t approved for cessation. None of them tried to explain how this product, alone among all the adult products that teenagers seek, must be completely prohibited.

Despite their hatred for Big Tobacco, Democrats ignored the fact that their bill would crush only the small independent vape industry, and leave the tobacco giants in a stronger position than ever. And none of them seemed aware that the bill they supported was crafted by activists funded by Democratic presidential candidate Michael Bloomberg, who is widely disliked and mistrusted.

Republicans made the logical points that Congress just passed Tobacco 21 in December, and the Trump administration banned pod- and cartridge-based flavored products even more recently. They called for giving those measures time to work. Unfortunately, Oregon Republican Greg Walden, who led the opposition, focused on flavors in legal Oregon medical cannabis products, and implied those products were responsible for the injuries and deaths caused by illegal THC products containing vitamin E acetate.

Very few observers expect the bill to be approved by the Senate, and many don’t believe Majority Leader Mitch McConnell will even allow it to have a vote. The White House Office of Management and Budget issued a statement Thursday indicating opposition to the bill. The Senate leader is unlikely to allow debate on the bill after the White House has already indicated it would probably be vetoed.

“The Administration cannot support H.R. 2339’s counterproductive efforts to restrict access to products that may provide a less harmful alternative to millions of adults who smoke combustible cigarettes,” said the OMB statement. “This includes the bill’s prohibition of menthol e-liquids, which available evidence indicates are used relatively rarely by youth. It also includes the bill’s approach to [online] sales. At this time, problems surrounding such sales should be addressed through the application of age verification technologies rather than, as this bill would do, prohibiting such sales entirely.”

“If presented to the President in its current form, the President’s senior advisors would recommend that he veto the bill,” the statement concluded.

But before we dismiss the story of HR 2339 with “all’s well that ends well,” we should consider the problems we still face. Most obviously, the vaping industry is just 10 weeks away from the FDA deadline to submit Premarket Tobacco Applications. Manufacturers that haven’t submitted PMTA’s will face removal of their products from the legal market.

Additionally, the regular dependence on Republicans to save vaping from the prohibitionist agenda of anti-tobacco activists—supported by Democratic legislators—is a precarious position. The Senate will eventually swing back to the Democrats, and so will the White House. Vaping and smoking aren’t partisan issues, but we have allowed them to drift onto that dangerous ground.

Vaping advocates have done little to approach Democratic legislators to offer reasons they should support us. More than ever, Democrats support racial and social justice, drug harm reduction, and believe in technology and innovation that mesh well with our pro-harm reduction and -innovation stances. Drug policy reformers like Ethan Nadelmann, Akex Wodak, and Gerry Stimson recognize the importance of including vaping in that conversation. That’s an ideological vacuum at least some vaping advocates should move to fill.

More pragmatically, the Senate is hardly a haven of vaping defenders. There is a current Senate bill (S 1253), which has already passed the House, that would outlaw U.S. Postal Service delivery of vaping products. That legislation already has 14 Republican co-sponsors, including many staunch conservatives. It would only need six more Republican supporters to have a veto-proof majority, and at least one very anti-vaping Republican (Mitt Romney) hasn’t publicly sponsored the bill yet.

Many Republicans might consider supporting what they see as “reasonable” restrictions to prevent youth purchasing of vaping products, like S 1253. But that “reasonable” bill would leave vapers with the choice of UPS and DHL—the most expensive delivery services—and nothing would prevent those companies from refusing to accept “tobacco products” in the future, as FedEx already has.

No one knows what horrors are on the horizon. The moral panic over youth vaping could get even worse. Or there could be another “EVALI”-like incident. Public opinion drives political support for bans and restrictions much more than principles do. No one knows what a re-elected Donald Trump, free from the concern over vaping votes, would do when his close advisers tell him to support a ban. And if he loses this fall, the odds are not good that a Democratic president would oppose any kind of vaping ban.

Vapers and the vaping industry continue to walk a political tightrope with no safety net below. Senate Republican support is mushy at best, and Democratic support in either house is almost non-existent. We need to be able to count on vocal supporters in both camps. But very few vaping advocates seem interested in trying to cultivate new streams of support if it requires any sustained effort.

Smokers created vaping without any help from the tobacco industry or anti-smoking crusaders, and vapers have the right to keep innovating to help themselves. My goal is to provide clear, honest information about the challenges vaping faces from lawmakers, regulators, and brokers of disinformation. I recently joined the CASAA board, but my opinions aren’t necessarily CASAA’s, and vice versa. You can find me on Twitter @whycherrywhy

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Tara Antonuccio
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Tara Antonuccio

Have you thought about the impact Medicare for All could have on vaping? If we remove the profit motive, Democrats would surely be more likely to support it.

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