House passes Midnight Rules Relief Act to revoke FDA deeming regulations for vaping

House passes Midnight Rules Relief Act to revoke FDA deeming regulations for vaping

(This story has been recently updated with additional information.  See below)

The U.S. House of Representatives has recently passed the Midnight Rules Relief Act of 2017, a bill which could essentially overturn the FDA deeming regulations almost immediately if also approved by the Senate.  The bill will allow Congress to consolidate and overturn regulatory actions submitted for congressional review within the last 60 legislative days of the Obama Presidency, or those dating as far back as May 2016.  The FDA deeming regulations published on May 10 may just barely make the cut, according to The National Law Review.

This congressional action comes just hours after the U.S. Food and Drug Administration attempted to tighten its grip on the struggling vaping industry by announcing an additional rule that would further clarify the agency’s stance regarding e-cigs as tobacco products.  The FDA’s “Final Rule” may have been the straw that broke the proverbial camel’s back in the eyes of the Republican Congress.


The Midnight bill passed the House largely along party lines, resulting in the vaping industry seemingly achieving the impossible – a legal reprieve from the crippling FDA deeming regulations that threaten to wipe out the entire industry by 2018. 

More about the Midnight Rules Relief Act of 2017

The GOP-controlled 115th Congress is not wasting any time in revoking many of President Obama’s legacy legislative decisions from the past eight years.  Senate Republicans have already taken decisive actions to repeal the Affordable Healthcare Act, otherwise known as Obamacare, but the process is proving more complex and time-consuming than many had previously anticipated.

The H.R. 21 Midnight Rules Relief Act of 2017 will dramatically expedite the repeal process for some 200+ pieces of lesser-known, Obama-approved legislation listed in a report by the House Freedom Caucus.  If passed by the Senate and signed into law by Donald Trump, the bill will amend the current Congressional Review Act (CRA) by granting Congress the authority to simultaneously group and overturn the combination of regulatory packages all at once.  Without the amendment, the CRA requires Congress to hold separate votes on each bundle.


This could be good news for the vaping industry because the FDA deeming regulations are not high on the list of Obama-inspired legislation that the Republican want to overturn.     Although the Republicans largely agree that the deeming regulations must be repealed, they have much bigger fish to fry at the moment.

Passing the Midnight Rules Relief Act of 2017 might save the U.S. vaping industry several months of finger-crossing hoping that the GOP doesn’t forget them.  Furthermore, the bill also safeguards the vaping industry from any potentially damaging last-minute regulations that the FDA might try to sneak in under the wire during the last days of the Obama Presidency.

Mitch McConnell and the Midnight Rules Relief Act

However, to gain final approval, the Midnight Rules Relief Act needs a full 60 votes in the Senate rather than just a simple majority vote.  And currently, Senate Majority Leader Mitch McConnell is remaining rather quiet regarding his opinions on this particular piece of legislation.  And support from McConnell is almost a necessity.

Wisconsin Senator Ron Johnson, the Chairman of the Senate Committee on Homeland Security and Governmental Affairs, and California Congressman Duncan Hunter, affectionately nicknamed “The Vaping Congressman" by e-cig enthusiasts, have publicly requested that the FDA overturn the deeming regulations on their own, just to save time.  But the FDA continues to ignore their requests.  If passed by the Senate, the Midnight Rules Relief Act of 2017 resolves this conflict once and for all.




Earlier today, ran the above article which we have recently updated after readdressing this issue with our sources. There seems to be conflicting opinions within the vaping community as to whether the FDA deeming regulations will indeed be included within the Midnight Rules Review Act...SHOULD the bill pass the Senate, as the article states.
According to our sources, because the FDA deeming regulations appear as Item #59 on the "wish list" for the House Freedom Caucus "First 100 Days: Rules, Regulations, and Executive Orders to Examine, Revoke, and Issue," they are still in the running to be included in the new Midnight bill. But this is America, and nothing is ever certain.
Many in the vaping community are speculating that the Midnight Rules' May 16 cutoff date prevents the FDA deeming regulations (published May 10) from being included. Our sources are telling us that the inclusion of the FDA deeming regulations on this “wish list” keeps them in the running.
Almost certainly, any addendum to the initial FDA deeming regulations of May 10 will be included in the Midnight Rule should it pass the Senate. These addendum may be the reason for the obscured date associated with the FDA deeming regulations within Item #59 of the "wish list" for the House Freedom Caucus and a potential loophole for their possible total inclusion within the Midnight bill. encourages everyone in the vaping community to contact their federal representatives to continue the fight for the repeal of the FDA deeming regulations.  And we will keep you informed of any future updates regarding this story.  


The opinions expressed in this article are those of the author's and do not necessarily represent the viewpoints, policy or company position of, the rest of our staff, and/or any/all contributors to this site.

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Matt Rowland - February 6, 2017

Thanks Pete (and all other commentators), but the text of the bill is up for legal interpretation, which is causing so much of the confusion. This is a very controversial issue, as is noted in the body of the article and in a followup blog that occurs on January 30 quoting the WSJ, Todd Gaziano (an original writer of the related Constitutional Review Act), and members of the National Law Review. While many in the vaping community are being told that the threshold date of 60-legislative days is “set in stone,” other legal experts decidedly disagree.

Pete Charette - February 6, 2017

Iam Uprise—This is a bill designed to give Congress the authority to overturn a bundle of Regulations all at once, instead of having to vote on them one by one. There is no language in this bill that would subvert the normal regulatory process for adding a new regulation. So there is zero chance that the Trump Administration, decidedly anti-regulation, would be able to add any regulations at the ‘bottom of the bundle’ as you claim. Read the text of the Bill.

Charles Yates - January 14, 2017

I remain optimistic and irrespective of what transpires re this particular bill, vaping will ultimately will be endorsed and to some extent embraced. I trust the FDA will be left looking foolish and as always, playing into the hands of big pharma.

Logic, common sense and what is best for society (specifically public health) will prevail, that is something we can count on.

Iam Uprise - January 14, 2017

This is not good. As usual this is another way for the government or rather 1 political party using its majority to try and consolidate as much power as possible. To bundle means throwing a bunch of rules & regulation are going to be hidden at the bottom of the bundle. Who knows what they will try and sneak in, and let’s not make this a vape only issue. I would give up vaping rights anyday vs. this Act. You end up giving up more with this act. Your giving the wrong people more power and we know the system is broken and being ran by the same people who broke the system. Wake up Peeps. Bigger picture than our little habit. Iam Uprise™

Jai Haze - January 14, 2017

where did you get this information from?

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