Federal legislation to ban all non-tobacco flavorings for tobacco products took its first step Wednesday by clearing a House Health subcommittee.
H.R. 2339, titled “Reversing the Youth Tobacco Epidemic Act,” would tighten the sale and marketing of traditional cigarettes, electronic cigarettes and cigars, including raising the federal minimum age from 18 to 21.
It also would provide the Food and Drug Administration with another $100 million annually — to $812 million — in manufacturer-paid user fees for administrative costs, and require the FDA to issue a final rule requiring graphic health warnings on cigarette packs and advertising by the court-ordered deadline of March 15.
The bill, if passed, would go into effect two years after it is enacted.
Committee co-chairwoman Rep. Anna Eshoo, D-Calif., praised the “multi-prong effort (as) comprehensive” because “it is not enough just to raise the legal age, or just curtail sales and marketing, or flavorings.”
Several HR2339 supporters said the legislation is crucial and necessary, particularly if the Trump administration backs away from the pledge it made in September to raise the minimum age and eliminate most non-tobacco flavorings.
White House officials have mentioned recently retaining menthol and mint flavorings for traditional and e-cigarettes. President Trump said Monday he will meet with industry officials to discuss his recommendations.
Stefanie Miller, an analyst with Sandhills Strategy, said “we continue to think it is unlikely that a Tobacco 21-only bill could pass Congress without Democrats working to include other provisions as well, such as banning nicotine altogether, banning menthol-flavored cigarettes, banning all flavors of e-cigarettes except for tobacco-flavored products, and banning all so-called ‘pod-like’ e-cigarette systems.”
“The more lenient the White House, the more aggressive we think Congress will feel compelled to act.”
Gregory Conley, president of American Vaping Association, said that, “When a country is in the middle of a moral panic, there is always a chance that unsound policy could become law.”
“We remain hopeful that Senate Majority Leader Mitch McConnell will focus on passing his Tobacco 21 bill, and let the awful ideas of House Democrats die on the Senate floor.”
The bill would ban non-retail store sales of all tobacco products, requiring a direct face-to-face interaction between consumer and retailer.
The recommendation from the Energy and Commerce’s Health subcommittee came after chairman Frank Pallone Jr., D-N.J., sent oversight letters in August to the top-four e-cigarette manufacturers: Juul Labs Inc. (Juul), Reynolds American Inc. (Vuse), Fontem Ventures (blu eCigs) and Japan Tobacco International USA Inc. (Logic).
Juul is the maker of the controversial and top-selling U.S. electronic cigarette, the only manufacturer mentioned by name during the 2½-hour meeting.
The subcommittee approved an amendment from Rep. G.K. Butterfield, D-N.C., to provide funding for smoking-cessation initiatives to supplement the bill.
Menthol styles, which are mint-flavored, have been controversial for decades because they are considered a smoother way to smoke traditional cigarettes, and because manufacturers have been accused of specifically marketing them to minority consumers.
Butterfield said that banning menthol flavoring without enhancing cessation programs “will make those in the African American communities feel targeted while others are untouched.”
The subcommittee rejected an amendment that would have added language to address concerns that tightened regulations would lead to more individuals acquiring banned flavorings from black market sources.
Rep. Richard Hudson, R-N.C., said that creating a bigger attraction for black-market sales of tobacco products would benefit terrorist groups, some of which gain their funding from illicit sales.
Pallone said such a risk to public health is exaggerated and typically used as a manufacturer talking point to water down legislation.
The federal Centers for Disease Control and Prevention has said its investigation into an outbreak of severe vaping-related illnesses is focused primarily on open-pod e-cigarettes in which liquids containing the marijuana compound THC are being vaped.
The CDC’s latest update on vaping-related illnesses, released Nov. 7, determined there have been at least 2,051 cases nationwide and at least 40 related deaths. On Friday, the CDC said it has found a “very strong culprit” in the vaping illnesses in vitamin E acetate.
Meanwhile, there have been few incidents reported involving the closed-pod e-cigarettes sold by the top-four manufacturers.
Some bill supporters expressed concern that the overall bill goes too far in terms of added regulations, saying the overreach would hamper efforts to help smokers quit with menthol and mint e-cigarette flavorings.
Eshoo said that while their concerns were warranted, she didn’t want HB2339 to be derailed given what she called “a growing epidemic of youth e-cigarette use.”
Reynolds said in a statement in September that “we share a common interest with the House Energy and Commerce Committee in addressing youth use of vapor products.”
“Reynolds American and its subsidiaries believe that minors should never use tobacco products, including vapor products,” the statement said. “Youth tobacco (including vapor) use is illegal and it hurts our businesses.”
North Carolina’s Republican U.S. senators Richard Burr and Thom Tillis issued statements in November 2018 questioning the FDA’s tobacco-products strategy, especially considering that a Democratic-controlled Congress created a legal exemption for menthol cigarettes in 2009.