As reported last week, the House of Representatives’ Appropriation Committee approved a 2019 government spending bill in which a new version of the Cole-Bishop Amendment was included. The original version was designed to provide the American vaping industry much-needed relief from the controversial FDA deeming regulations by revising the related 2007 predicate date. The latest revision approved by the GOP-controlled House excludes vaping devices entirely while providing significant relief to certain business sectors of Big Tobacco.
The news was initially greeted by vaping advocates with shock and awe, including the Vapor Technology Association (VTA). However, many remained hopefully optimistic that the Senate would revise the bill a second time into a more pro-vaping document before being signed into law. According to an email announcement by the VTA, the bill was indeed revised. But instead of reinstating the amendment’s original language, the Senate led by Majority Leader Mitch McConnell simply erased all references to the Cole-Bishop Amendment completely.
“This week, no such language was included in the Chairman's mark, nor offered as an amendment either at the Senate Agriculture Appropriations subcommittee (on Tuesday) or by the full Senate Appropriations Committee (yesterday). The bill as marked up contains no language that would give relief to combustible tobacco products. So, for now, we have prevented the House's language from being included in the Senate bill.”
- As posted on May 25 by VTA’s Tony Abboud via TasteYourJuice.com
Related Article: The 2019 Cole-Bishop Amendment is bad news for vaping
This political recalculation theoretically means that the over-ten-years old predicate date will remain in place indefinitely for both tobacco and vaping manufacturers. However, the predicate date may be the least of the vaping community’s worries. In the House version of the Appropriates bill from earlier in May, mentions were made of the FDA considering a future regulation requiring biometric technology (retina-scanning and/or fingerprint reading) on all vaping devices to prevent underage use. If biometrics requirements are enacted, then the predicate date issue becomes null and void instantaneous.
What about the vaping flavor ban?
VTA is also reporting that lawmakers on Capitol Hill were also debating on whether to include legislative language in the Appropriates bill that would essentially implement a sort of flavor ban on kid-appealing e-liquids. According to the report, Senator Richard Durbin (D-IL) was leading the charge but failed to gain majority support thanks to work down behind the scenes from advocacy groups like the VTA.
“At the same time, our teams were working against an effort to add legislative language regarding flavors to the Senate bill. Our efforts in this regard also were successful and the proponent, Sen. Richard Durbin (D-IL), agreed not to offer any such amendment. Instead, Sen. Durbin was able to get "report language" inserted to the Committee report. Report language is not law, is not precedent and agencies, like the FDA, tend to treat this language as advisory. It is not in any way legally binding on any Agency or entity.”
A possible flavor ban may have been thwarted this time, but vapers are not out of the woods yet. In late March, the FDA announced the launching of a new probe into the possible public health effects (especially regarding minors) reglating to flavored e-liquids. The probe will end on June 19, 2018 – only 26-days from the publication date of this article. Vapers from all walks of life are encouraged to share personal stories and possible financial and/or health-related consequences should an FDA flavor ban be put into place. The Federal Register provides easy-to-understand instructions for how vapers can respond to the FDA probe via written or electronic submissions.