Lawmakers are seizing on the outbreak of a vaping-related illness to push for more aggressive regulation of the young but fast-growing e-cigarette industry.
Democrats and increasing numbers of Republicans want age restrictions, flavor bans, and marketing crackdowns. They want the FDA to move faster to investigate and regulate e-cigarettes, touted by the industry as a way to reduce harm from traditional cigarette smoking but which has also led to what the FDA calls an “epidemic” of youth vaping of nicotine.
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Health authorities haven’t fully untangled what’s causing the respiratory disease, which has potentially affected more than 450 and killed six. Public health officials across 33 states have linked many of the cases to vaped forms of marijuana and its component CBD — both of which are in legal but in regulatory limbo. Counterfeit or black market nicotine vapes may also have a role — and legal vapes haven’t been totally ruled out, but they aren’t dominating the public health investigation into the illness.
Yet anti-tobacco lawmakers and children’s health advocates are using the moment to demand more regulation of e-cigarettes, including industry powerhouse Juul. They want to go further than Senate Majority Leader Mitch McConnell’s bill, which would raise the age for buying all tobacco to 21. And they want consistent national standards, not a state-by-state patchwork as some areas of the country plow ahead on flavor bans.
McConnell, who is pushing the bill alongside Virginia Democrat Tim Kaine, hasn’t spoken about his bill in public in months, and his office Tuesday referred to his earlier statements about doing “everything we can to keep these harmful products out of high schools and out of youth culture.”
The McConnell-Kaine bill is part of a broader health care cost bill, including drug prices and “surprise” medical bills, that’s passed the Senate HELP committee but does not appear likely to come to the floor quickly.
Senate Finance ranking member Ron Wyden (D-Ore.) also proposed just last week that the committee advance legislation to tax e-cigarettes at the same rate as traditional cigarettes to remove the “on-ramp” for kids, he told POLITICO.
Many Republicans are still lined up with McConnell, wanting to raise the purchase age but leaving the rest to states and the FDA. Some, like Indiana Sen. Todd Young, who has sponsored legislation to raise the legal age to 21, say they’re open to tougher measures. Sen. Mitt Romney of Utah, urged the FDA to pull e-cigarette products off the market.
In the House, Rep. Donna Shalala (D-Fla.) is in talks with Republicans about her broader bill with House Energy and Commerce Chairman Frank Pallone (D-N.J.). The legislation, which she believes will get a markup soon, would raise the tobacco purchasing age to 21, ban flavors and restrict advertising. And while there are 33 co-sponsors on the bill, just one — New York’s Pete King — is a Republican.
But that was before the lung disease emerged, and Shalala now says, “We’ll get Republican votes on it.”
“What we need to do is keep the focus on kids. [That’s how] we win the debate nationally with the American people,” she added.
Longtime vaping critic Sen. Dick Durbin (D-Ill.) has called on FDA acting Commissioner Ned Sharpless to act on the e-cigarette industry right now — or resign. Durbin has another meeting with Sharpless this week, he told POLITICO, just a few days after the FDA warned Juul against marketing its products as much safer than tobacco.
“As of last week, they’d done nothing,” Durbin said of the FDA. “As of this week, they’ve done something at least confronting Juul with its health claims, which should have been done long ago.”
An Energy and Commerce subcommittee will hold a hearing this Sept. 25 on the vaping-related illness and e-cigarette regulation. Pallone and Oversight and Investigations subcommittee chair Rep. Diana DeGette (D-Colo.) said in a statement that they “are greatly concerned that e-cigarette products continue to be disseminated and used while consumers lack information” on their health impact.
The FDA released a statement late Tuesday saying it’s doing everything it can to get to the bottom of the illness, and protect young people. “We’re committed to taking appropriate actions as the facts emerge and keeping the public informed as we have more information to share,” it said.
“Cigarette smoking remains a leading cause of death and disease in the United States, and no tobacco product should be considered safe to use,” it added.
Meanwhile, lawmakers on both sides of the aisle are questioning whether the FDA should step up regulation of the e-cigarette industry, where no products have gone through federal review yet. A federal court order this summer moved the FDA deadline to May 2020, but in the meantime, hundreds of vapes remain on the market in regulatory limbo.
The efforts to address teen vaping has bipartisan appeal in a Congress fiercely divided over health policy. Many lawmakers say the unregulated landscape of e-cigarettes — and scarce research on vaping’s purported benefits over smoking — is fueling a public health epidemic with no end in sight.
“This has to be dealt with,” said Rep. Jan Schakowsky (D-Ill.), who represents the state with the first reported vaping-related death. “I would like to see these e-cigarettes absolutely banned, but part of the problem is, we know so little about what’s actually in it.”
Critics argue that these bills would not touch what increasingly appears to be a key culprit in the outbreak: marijuana vapes, including THC-based products that give people a ‘high’ and recently legalized hemp-derived CBD, which has boomed in popularity and is in a regulatory void as FDA races to draw up regulations.
Marijuana is still a touchy subject on the Hill, and legislation rescheduling pot — which would allow for more research and potentially let FDA set some regulatory ground rules — is less likely to head to President Donald Trump’s desk than broader tobacco bills. Many Democratic lawmakers are also hesitant to narrow in on marijuana vapes when the broader e-cigarette industry has been in their sights for months now.
Longtime proponents of marijuana legalization point to the current outbreak as an example of why federal action is needed.
“We can’t continue to keep our heads in the sand on the federal level while this is happening at the state level,” said Sen. Cory Gardner (R-Colo).
“This is all an argument for why we need to legalize and regulate. We need to have standards. We need to make sure people know what’s going on,” said Rep. Earl Blumenauer (D-Ore.), a longtime proponent of marijuana legalization.
Several Democrats, including DeGette and Michigan Rep. Rashida Tlaib, drew parallels between the vaping industry’s strategies and cigarette companies’ moves when they were put under the spotlight in the 1990s.
Tlaib pointed to Michigan Gov. Gretchen Whitmer’s recent order to temporarily ban e-cigarette flavors as evidence the federal government should take a stronger stance. “I think there’s been new momentum because parents are now starting to see this, that their children are targeted by these companies and their flavors,” she said. She compared e-cigarette makers responses’ to criticism — that they are helping smokers switch off more dangerous tobacco products — to “gaslighting.”
The number of teenagers vaping is increasing — 3.6 million last year, compared with 2.1 million in 2017.
“It certainly scares the hell out of us,” Durbin said.
Natalie Fertig and Adam Cancryn contributed to this report.