The House on Friday passed, 213-195, a bill that would ban flavored tobacco products and impose taxes and sales restrictions on e-cigarettes.
While the bill was mainly touted as part of House Democrats’ efforts to limit youth e-cigarette use, the vote underscored concerns that the bill could discriminate against some tobacco users.
The bill would ban all flavored tobacco products, including menthol cigarettes and flavored cigars. But it also would carve out more expensive premium cigars from the most stringent Food and Drug Administration regulation, leading to criticisms from some Democrats and many Republicans that it would impose a double standard based on race and class.
Still, Democrats’ desire to address youth e-cigarette use was enough to advance the bill. Five moderate Republicans joined Democrats to support the bill.
While eight of the 17 Democratic 'no' votes were from African American members who had expressed concern about the implications of banning menthol, they were joined by nine Democrats who will have tough reelection campaigns in more conservative districts. House Majority Whip James E. Clyburn, who said he had concerns about the bill, was one of 22 members who did not vote. Clyburn's home state of South Carolina holds its presidential primary on Saturday.
Party leaders view the measure as essential to building on the recently enacted nationwide tobacco purchasing age of 21, as well as filling in gaps left by the Trump administration’s decision to ban flavors in pod-based e-cigarettes like Juul but keep them available in other vaping formats.
“Big tobacco has become totally irresponsible in running ads in trying to get kids hooked on tobacco, primarily vaping through flavors, and we have to do something about it,” said House Energy and Commerce Chairman Frank Pallone Jr., D-N.J., who sponsored the bill.
The Republican-controlled Senate is unlikely to take up the measure. The White House on Thursday threatened to veto the bill, and only a minority of Republicans support the bill's e-cigarette and other tobacco flavor restrictions.
The bill would provide an opportunity to continue sales of e-cigarette flavors, which are already set to be subject to FDA scrutiny in May. If a company can show that the flavor is necessary to help adult smokers switch from traditional cigarettes and doesn’t have an adverse health impact or cause nonsmokers to take up vaping, the FDA may authorize it.
The bill's authors think that would be a standard no e-cigarette manufacturer would be able to meet.
The bill would also impose new taxes on vaping products and restrict how they can be advertised.
Concerns over discrimination, ‘double standard’
Some of the provisions were too much for some House Democrats, and not just those from tobacco-growing states. A ban on menthol flavors was criticized by many African American lawmakers, who fear that police could use it as an excuse to harass black smokers. Since the bill would carve out more of a regulatory safe space for premium cigars while banning sales of cheaper flavored cigars and menthol cigarettes, some members of the Congressional Black Caucus said there was a double standard.
Some tobacco-state lawmakers and Congressional Black Caucus members argued that if Congress wanted to outlaw menthol, it should just ban all tobacco products altogether. “Unless we’re going to ban tobacco, why are we going to tell people who are adults what kind of legal products to use?” asked Rep. A. Donald McEachin, D-Va. “I think that’s inconsistent with how we govern.”
The bill could also effectively ban hookah smoking, which almost always uses flavored products, fueling concerns from communities of Middle Eastern descent.
In response to those concerns, the House Energy and Commerce Committee during a November markup added provisions that would create grants to promote tobacco prevention efforts in minority and underserved communities and to help educate law enforcement about the bill, which is meant to target manufacturers and retailers, not individual users.
Republicans added to the arguments about a double standard, expressing frustration that the bill wouldn’t address marijuana vaping.
In some states it is legal to sell flavored marijuana extracts for vaping, and in states where marijuana is illegal there are thriving black markets of marijuana vaping supplies. Such black market products were responsible for an outbreak of lung disease that killed dozens and sickened thousands across the United States last year.
Republicans also argued that the new taxes that would be imposed by the bill would encourage former cigarette smokers who have switched to vaping to return to traditional smoking.
“This bill is the worst example of Big Brother liberal elites telling the rest of us how to live our lives,” said Rep. Richard Hudson, R-N.C.
While the American Civil Liberties Union and other civil rights groups joined in the criticism over discrimination concerns, dozens of public health groups tried to counter those arguments.
Groups such as the African American Tobacco Control Leadership Council and the NAACP tried to address the concerns about menthol, signing on to advertisements this week paid for by the Campaign for Tobacco-Free Kids.
“Menthol cigarettes have addicted generations of African Americans, resulting in high death rates from lung cancer, heart disease, stroke and other smoking-related illnesses,” the groups said in a print ad.