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E-Cigarette Industry Eyes Year-End Bill for Regulatory Rollback

Omnibus could better shield e-cigarette sales from new FDA regulations

Oklahoma Rep. Tom Cole said an omnibus bill would a better way of ensuring the sale of e-cigarette products are not affected by the new FDA regulations. (Al Drago/CQ Roll Call file photo)
Oklahoma Rep. Tom Cole said an omnibus bill would a better way of ensuring the sale of e-cigarette products are not affected by the new FDA regulations. (Al Drago/CQ Roll Call file photo)

The effort to pass appropriations bills on time has all but collapsed because of controversial policy riders, but the e-cigarette industry and its allies view the likelihood of a catchall spending measure as a good thing.  

That’s because of a provision tucked into the House bill that funds the Food and Drug Administration (HR 5054), which would let current e-cigarette products remain on sale without pre-market approval from the FDA. Supporters of the language think it is more likely to survive in an omnibus than a stand-alone bill funding the FDA.  

The e-cigarette language in the House bill was approved by the Appropriations Committee but only had the support of two committee Democrats. The dynamics in the Senate are less favorable to e-cigarettes. Kansas Republican Sen. Jerry Moran, the sponsor of the Senate bill that funds the FDA, has resisted any sensitive policy riders.  

That’s why the industry and its allies think the best approach may be to keep the issue out of the spotlight until the two chambers negotiate an omnibus.  

Asked whether the likelihood of an omnibus improves the chances of survival for language that shields e-cigarettes, Rep. Tom Cole, the Oklahoma Republican behind the House language, said it would. “It keeps it alive,” he told Roll Call.  

“I’m hopeful that we’ll continue to work, and people in the industry will continue to contact members on both sides of the aisle,” he said.  

FDA regulations on e-cigarettes, vaporizers and other new nicotine-delivery products were finalized in May. The rules will require those products to undergo a lengthy FDA pre-market approval process. Manufacturers and retailers in the e-cigarette business worry that complying with the regulations will cost them millions and will result in many of them going out of business.

Lobbying efforts

The industry has been trying hard to court lawmakers as potential allies. The Smoke-Free Alternatives Trade Association earlier this year sponsored a series of visits to Capitol Hill by the owners of small shops that say they will be adversely affected by the regulations.  

According to a list that the association provided, SFATA and its members held meetings with 47 lawmakers’ offices in the House and 32 in the Senate. About 40 percent of those meetings were with Democratic offices, but so far there is evidence of only one changed mind: Rep. Collin C. Peterson of Minnesota last month signed on as a sponsor to a bill from Cole (HR 2058) that would have a similar effect as the appropriations language.  

A stand-alone bill would have an even more difficult time passing both chambers, but some in the industry think it should be introduced to at least raise awareness of the issue. Gregory Conley, president of the American Vaping Association, which represents small and medium-sized retailers in the vaping industry, thinks that could mobilize users of e-cigarettes and vaporizers to pressure lawmakers into supporting the House appropriations language.  

“That could show to leadership that this is an issue that can be kept in” an appropriations bill, he said.  

No senator has emerged as an industry ally like Cole has in the House, but some are looking to Wisconsin Sen. Ron Johnson. In his capacity as chairman of the Homeland Security and Government Reform Committee, Johnson recently sent three letters to the FDA demanding to know what effect the regulations will have on small businesses.  

Johnson cited a common industry argument that vapor products are safer than traditional cigarettes and questioned whether the FDA regulations would lead more people to choose more harmful combustible tobacco products.  

“A large number of individuals have contacted my office to tell their stories about how they use or have used e-cigarettes to quit smoking,” Johnson said in a June letter. “They do not want the FDA to make access to e-cigarettes more difficult for them.”  

A pair of recent reports from the Centers for Disease Control and Prevention show declines in cigarette smoking, while the use of e-cigarettes and vapor products is on the rise. The e-cigarette industry points to those reports as proof that vapor products help people quit smoking cigarettes. If the FDA regulations limit consumer choices, they say, fewer people will quit.  

Even though anti-smoking groups acknowledge that smokers who completely switch over to e-cigarettes are reducing health risks, they worry that young people who begin a nicotine habit with e-cigarettes will end up using the deadlier product. One of the reports showed that as many as 24 percent of high school students have used e-cigarettes within the past 30 days.  

“We should be thinking about ways to transition smokers from smoking. It’s an awful thing,” said David Dobbins, the chief operating officer at the Truth Initiative, a nonprofit that aims to reduce tobacco use. “That doesn’t mean we need to forget about our obligation to kids,” he added.  

The House appropriations bill includes language designed to ease concerns about youth use. It would restrict sales from vending machines, limit advertising that could be seen by young people and require labels declaring “Keep Out of Reach of Children.”  

Those changes are unlikely to resonate with Senate Democrats, who for years criticized the FDA for moving slowly on its e-cigarette regulations. Last year, Democrats opposed e-cigarette language in the fiscal 2016 omnibus, and they see pro-industry provisions as poison pills.  

“There is a substantial number of members who are very concerned about the impact of both flavored cigars and flavored e-cigarettes on young people and don’t want to be responsible for appearing to do the special interests a favor in this case,” said Matthew Meyers, president of the Campaign for Tobacco Free Kids, an advocacy group.

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