Anti-Teen-Smoking Efforts Pending in Congress

ALEXANDRIA, Va.—Matt Borges, the former chairman of the Republican Party of Ohio, highlighted recent efforts at the federal level to address the problem of teen vaping in a column, “Why Congress Is Taking Action to Address Teen Smoking,” published Wednesday in Observer.

Borges, who is a director at Roetzel Consulting Solutions, said recent the legislative moves show “the House and Senate are serious about tackling the challenge of teen smoking.”

Before departing his post, Scott Gottlieb, former commissioner of the U.S. Food and Drug Administration (FDA), issued a draft policy intended to limit teenagers’ access to flavored electronic cigarettes. If implemented, the policy would focus enforcement efforts on stores that allow minors to enter, such as convenience stores, essentially banning c-stores from selling most flavored e-cigarettes. At the same time, the agency intends to allow stores that are adult-only, such as vape shops and tobacco shops, to continue selling the products.

After the leaving the agency, Gottlieb later acknowledged in an Axios podcast that minors aren’t getting e-cigarettes at c-stores, but rather from enterprising 18 year-olds.

In April, 46 members of the U.S. House of Representatives sent a bipartisan letter to Acting Food and Drug Administration (FDA) Commissioner Ned Sharpless raising concerns about the FDA’s draft guidance regarding the sale of e-cigarettes.

The letter, led by Congressman Trey Hollingsworth of Indiana, underlines that the proposed restrictions pick winners and losers in the marketplace by allowing certain channels of trade to sell these products and prohibiting other channels like the convenience store and grocery channels.

FDA has not provided data that supports this type of distinction between adult-only and stores where minors can enter. In fact, the draft guidance cites data showing that more teens acquire e-cigarettes from vape shops (14.8%) than from convenience stores (8.4%).

“Even more teens will be pushed to vape shops when this rule takes effect, meaning more teens will be able to purchase e-cigarettes,” Borges said, adding that he hopes the diverse, bipartisan support in Congress opposing the draft policy will “cause Sharpless to change course.”

NACS and the Society of Independent Gasoline Marketers of America (SIGMA) have jointly submitted formal comments on the FDA’s draft guidance.

Separately, U.S. Senators Barbara Feinstein (D-CA), John Cornyn (R-Texas) and Chris Van Hollen (D-MD) in April introduced S. 1253, the Preventing Online Sales of E-Cigarettes to Children Act, a bipartisan bill that seeks to prevent online sales of e-cigarettes to minors by applying the same measures already in place for cigarettes and smokeless tobacco products. When an e-cigarette product is purchased in a convenience store, the age is verified at point-of sale-before the adult customer receives the product. Online retailers also should ensure age is verified by an in-person ID check when an e-cigarette product is delivered. The bill also would require shipping packages to be clearly labeled that they contain tobacco products.

“This is a much-needed change,” Borges noted, because “the current laws that govern tobacco deliveries do not include e-cigarettes because the Prevent All Cigarette Trafficking Act (PACT) was passed in 2009, before these products became commonplace. This loophole is likely the reason that of the teens surveyed who bought e-cigarettes or other vape products, over 30 percent bought them online, more than any other type of retailer,” he wrote.

For more from NACS on the PACT Act, see our advocacy issues page on E-Cigarettes.

Borges noted that Senate Majority Leader Mitch McConnell (R-Ky.) introduced legislation to increase the legal age to purchase tobacco products to 21. “Given his support for addressing this public health concern, he should get behind the Preventing Online Sales of E-Cigarettes to Children Act,” Borges said.

“McConnell should keep the FDA’s recent ineffective actions on e-cigarettes in mind when it comes time to confirm a permanent FDA commissioner,” Borges said. “And I hope the House and Senate continue to make progress in addressing the teen smoking epidemic.”