Who decides Vape legislation?

In 2020, we’re going to see more regulations and legislation regarding vape. While individual states may have their own regulations and some have already implemented flavor bans, it is becoming more and more likely that vape will be regulated at the federal level. You can take action and advocate for yourself and your fellow vapers, but here are some things you should know should vape regulations reach the federal level.

What We Know

We know that the Food and Drug Administration (FDA) is responsible for various regulations surrounding vape. The current FDA Commissioner is Dr. Stephen Hahn, who has remained mum on his stance on vaping but has promised to follow the “science and evidence” on vaping. We also know that Congress has passed a bill to raise the smoking age federally to 21 in 2020, with around half of all states raising their smoking age to 21 beforehand.

We also know that the premarket tobacco application (PMTA) deadline is approaching in May 2020, although this could be extended. But who really decides vape legislation? While the FDA can make recommendations, it cannot create or repeal laws. As previously mentioned, states may introduce their own laws on vape regulation, such as flavor bans or taxes on vaping products. Several states already tax vaping products, including eJuices.com’s home state of Nevada.

House of Representatives

The House of Representatives is the lower house of Congress and has a unique power in Congress: the ability to introduce bills that raise revenue. As we discussed in our Master Settlement Agreement (MSA) blog post, many states took out tobacco bonds against future cigarette sales. Since smoking rates drastically declined, states lost large amounts of money due to their investments in tobacco bonds. With the decline in tobacco use, vaping use has only increased significantly since then. Therefore, a possible pathway for state governments to regain those lost funds could be through the House of Representatives introducing legislation that may require taxes on vaping products.

The Subcommittee on Agriculture, Rural Development, Food and Drug Administration and Related Agencies is under the Appropriations Committee. Currently, the chair of this subcommittee is Rep. Sanford Bishop (D-GA). Rep. Rosa DeLauro (D-CT) is the vice-chair. Rep. Jeff Fortenberry (R-NE) as the ranking member of this subcommittee. While the FDA is part of the Department of Health and Human Services, these members of Congress are closest to creating any bill or amendment that would tax vape products or ban flavors on the federal level. Rep. DeLauro already introduced H.R. 293, or the Youth Vaping Prevention Act of 2019, which would put further restrictions on flavors.

For the Appropriations Committee itself, the chair is Rep. Nita Lowey (D-NY), and the ranking member is Rep. Kay Granger (R-TX). Much like Sen. Dick Durbin (D-IL), Lowey is a fierce critic of the vaping industry. In a November 18, 2019 press release, Lowey said, “Leaving any flavored products on shelves is irresponsible...it has created an uphill battle, I fear, for at least a generation to come, with unknown long-term costs to public health and to the American economy.” While many adult vapers credit flavors for helping them switch to vaping, and while there is agreement that youth vaping should be curbed, this could unintentionally hurt adult vapers who enjoy flavors.

Senate

While we know about Sen. Durbin’s fierce approach to legislating the vape industry, the Senate also has a similar subcommittee with the same name: the Subcommittee on Agriculture, Rural Development, Food and Drug Administration and Related Agencies. This subcommittee is led by Sen. John Hoeven (R-ND), as the Republicans control the Senate. The ranking member is Sen. Jeff Merkley (D-OR), and other high-ranking Senators are also part of this committee, such as Sen. Dianne Feinstein (D-CA), where several local vaping bans are in place, as well as Patrick Leahy (D-VT), who is currently the longest-serving Senator, having been in the Senate since 1975.

Interestingly, Senate Majority Leader Mitch McConnell (R-KY) is also on this committee—McConnell had once been seen as an advocate for the tobacco industry, with R.J. Reynolds calling him a “special friend.” McConnell himself once said, “Farming tobacco put shoes on kids’ feet. It put dinner on the table.” He even told tobacco lobbyists, “Please feel free to call me whenever I may be of assistance to you.” Due to McConnell being on this committee and also being the Senate Majority Leader, he may have a major influence in vaping policy going forward.

What Can I Do?

While you should continue to take action and contact your representatives, Senators, and call the White House, you now have an idea who has more control over vaping legislation in both the House and the Senate. We advise that you continue to advocate for your right to vape flavors and to tell your elected officials how flavors and access to alternative nicotine products for harm reduction are important to you. Remember, we cannot do it without you!