Democrats are renewing efforts to protect children from the potential harm of electronic cigarettes, but the main event will come on the regulatory front if the Food and Drug Administration meets expectations and releases a final rule this year.
The agency issued a long-anticipated proposal last April to extend its authority to e-cigarettes and other unregulated products under a 2009 tobacco law. Some Democrats and public health advocates have insisted the proposed rule does not go far enough, however, and are pressing the agency to take additional action to protect young people.
Senate Minority Whip Richard J. Durbin, D-Ill., said he’s not expecting much on the legislative front before the final regulations come out, assuming that happens in a matter of months. Most of the outspoken critics of the fast-growing growing e-cigarette industry are Democrats in the minority in both chambers.
“It starts with the premise that most Republicans are loathe to expand government’s role in the public square,” Durbin said.
Still, backers of regulation hope a narrowly targeted bill the Senate Commerce, Science and Transportation Committee endorsed last year could have legs. The legislation (S 142), reintroduced on Jan. 8 by Florida Democrat Bill Nelson, would direct the Consumer Product Safety Commission to issue a childproof packaging rule for liquid nicotine, which is used to refill e-cigarettes.
Nelson, the top Democrat on the panel, said he has not spoken to Chairman John Thune, R-S.D., about moving the bill but said conversations have occurred at the staff level. Industry groups have also indicated they’re on board with at least the concept of requiring liquid nicotine containers to be childproof.
“Now that a child actually died, it’s time to move along,” Nelson said, referring to reports that a 1-year-old died in December after ingesting the substance.
A committee spokesman pointed to a statement Thune made last Congress in support of Nelson’s bill, but wouldn’t say whether the panel had plans to take it up again soon. While the statement said Thune thinks “there is broad agreement about the need to protect young children against an easy-to-open poisonous substance that has become more widely available with the advent of E-cigarettes,” it also referenced potential stakeholder questions about “the clarity of jurisdictional lines” between the CPSC and the FDA.
The bill didn’t advance beyond the Commerce markup last year, despite the American Academy of Pediatrics sending an email after the death to every House and Senate office urging passage before year-end.
The measure was reintroduced with the support of a dozen Democrats and New Hampshire Republican Kelly Ayotte, who is discussing the bill with her colleagues and working to gain additional support, according to spokeswoman Liz Johnson.
The loudest criticism about the proposed rule from some Democrats and advocates may be that it doesn’t ban flavoring in e-cigarettes or marketing that could attract youth — though the FDA has said flavoring and advertising restrictions would require separate rule-making.
Sen. Barbara Boxer, D-Calif., introduced legislation before the proposal was released that would bar the products from being marketed in a way that would increase their use by children and her office said she plans to reintroduce it before the February recess. Connecticut Democrat Elizabeth Esty reintroduced a House version on Jan. 22.
The measure, which never gained any Republican co-sponsors, appears less likely to advance than the Nelson legislation. But Boxer said she’s holding out hope Republicans will help move it forward, noting it appears e-cigarette use among young people is increasing exponentially.
“They’ve been pretty hostile on health and safety measures, but I think this one is so obvious when you can see all the cartoons and all the things they’re doing,” she said. “I’m ever hopeful that the public will come on my side.”
At least one Republican is also wary of the FDA’s current proposal. At a Senate hearing last May, Lisa Murkowski of Alaska said she has “a real concern here that we are setting forward a proposed rule that does not look to the flavoring that is going into these e-cigarettes, the impact on our children, some of the studies that we have seen.”
Miguel Martin, president of LOGIC Technology, said his e-cigarette company doesn’t advertise on television or use celebrity spokespeople, and would support a ban on candy-like or youth-oriented flavors.
Right now, the company only sells menthol and tobacco flavors, he noted. But rather than Congress spring into action, he prefers to wait and see what the FDA comes up with.
LOGIC may not agree with everything the agency lays out, Martin added, but at least regulations would provide a level set of rules that everyone is accountable for.
“For a company like ours, they can’t happen soon enough,” he said.
Dave Dobbins, chief operating officer of the anti-tobacco group Legacy, said he thinks regulation of e-cigarettes is “absolutely critical.” He noted there are many conflicting studies, potentially because the products being examined are very different.
“There’s just no way to consistently think about the product category,” he said. “We need some rules in place for what the device really is.”
Dobbins said his organization is open to the possibility of a safer way to deliver nicotine, but that “the current regime of anything goes” confuses consumers and leaves youth vulnerable.
The FDA’s rule-making agenda projects that the final rule will be published in June, though there is no legal deadline.
FDA spokeswoman Jenny Haliski said the agency cannot speculate on timing. The public comment period ended on Aug. 8 and Haliski said the goal is to work as quickly as possible to review the feedback.