2015 Vapor Legislation, and What You Can Do About It

By the middle of next week, 19 states will have begun their 2015 legislative sessions. By the end of January, all but 6 states will be in session. We’d like to take this opportunity to prepare you for what is shaping up to be a very, very busy year for Tobacco Harm Reduction advocates.

STATES:

• Taxes
• Child Resistant Packaging
• Labeling Requirements
• Restrictions on Sales to Minors
• Online Sales Restrictions/Bans
• Place Bans

FEDERAL:

• FDA Deeming Regulation
• Child Resistant Packaging

Many states are focusing on e-cigarettes as a source to make up for revenue shortfalls. At the moment, we are looking at seven states with nine pre-filed or draft bills that would impose a sin tax on e-cigarettes:

• New Mexico: SB 65
• Utah: Governor’s Budget Proposal
• Nevada: SB 79, Draft Bill 307
• Oregon: Draft Bill 1037, Draft Bill 2268
• Washington: Governor’s Budget Proposal & Draft Bill
• Indiana: Draft Bill (Rep. Ron Bacon)
• New York: AB 296 (same language as last year’s AB 8594)

CASAA takes a zero-tolerance position on imposing any taxes (other than a simple sales tax that consumer products are generally subject to) on vapor products. This is worth noting as there have been instances where it’s been suggested that a small tax on vapor products might be an appropriate concession that might convince lawmakers to reconsider other damaging legislation. We want to be clear: Sin taxes are not a bargaining chip. They are inappropriate for this product category, and once the language is in the code, lawmakers will face little resistance when they decide to raise the tax to a more punitive level.

Not surprisingly, another issue that states will be focusing on is child-resistant packaging (CRP). Although CASAA is generally supportive of CRP in the sense that it is a responsible practice and all manufactures should take steps to protect consumers, we are cautious when considering legislative solutions to this issue. As a general rule, CRP regulation at the federal level would be preferable to a patchwork of different state laws. (Too many different state and local laws will make it difficult for products to cross state lines, reducing consumer access.) However, federal solutions tend to come more slowly, and so we expect that states will be proposing their own solutions.

We are currently discussing how best to approach this issue and will be building a list of “talking points” for advocates to use when communicating with lawmakers. We are interested in working with lawmakers to craft CRP regulations that are in line with existing federal laws to promote uniformity among the various states. But, perhaps more importantly, we recognize the role of the consumer in this discussion as they have the ability to directly influence manufacturing practices by electing to shop with responsible vendors.

• Washington: Draft Bill
• California: SB 24
• Missouri: HB 147

Labeling requirements, much like CRP, are best dealt with at the federal level. We saw a few attempts to impose labeling requirements for e-cigarettes last year and each was defeated. Again, from a consumer standpoint, we are concerned about the effects of a patchwork of state laws as well as inappropriate labeling requirements crafted by those who oppose e-cigarette use as a low-risk alternative to smoking.

Restrictions on sales to minors will also be an issue in several states. In the 9 states that have not yet banned sales to minors, we expect such bills to be introduced. In the 41 states that have already implemented youth access laws, we expect some to take action to expand those laws. Again, although CASAA is generally supportive of age restrictions, we approach these bills with caution. Last year in states such as New Mexico, Massachusetts, and Oregon, “public health” groups successfully lobbied lawmakers to delay imposing bans on sales to minors and to hold out for future bills with unrelated provisions like taxes, usage bans, and tobacco classification. We will continue to push for lawmakers to enact clean bills that simply ban sales to minors without unnecessarily restricting adult access. We expect that bans, burdensome restrictions on online sales, and possibly advertising restrictions will also be part of some of these discussions.

• Washington: Draft Bill
• California: SB 24
• Indiana: Draft Bill (Rep. Ron Bacon)
• Montana: Draft Bill 66, Draft Bill 245
• North Dakota: HB 1078
• New Mexico: SB 42
• Texas: HB 81, HB 170, & SB 97

Place bans are also creeping into state legislation this year. While we saw indoor (and some outdoor) use bans pass in cities from New York City to Los Angeles last year, advocates have been very successful in beating back these bills at the state level. Nonetheless, we expect to see many states consider similar measures in 2015.

• Kentucky: Board Resolution 127
• Indiana: Draft Bill (Reps Ed Clere, Charlie Brown)

At both the State and Federal levels, we expect to see more posturing on the issue of “characterizing flavors.” Although only one state (Washington) thus far has included language addressing flavors, the topic is likely to be brought up ad nauseum in the media and by a few outspoken members of congress. We are also monitoring the progress of an ordinance in New York City that would prohibit the sale of flavored e-cigarettes. Whether or not this will make its way into any meaningful legislation this year has yet to be seen, but we feel it worth mentioning.

The FDA is expected to finalize Deeming Regulations for New Tobacco Products this year. The FDA has placed a self-imposed deadline of some time in June. However, before anything is finalized, The Office of Management and Budget (OMB)/The Office of Information and Regulatory Affairs (OIRA) will need to review the final regulations. Our current Call to Action regarding the FDA is linked below. For more background on the Deeming Regulations, please see our FDA Calls to Action and our comment on the docket.

Currently, there is a bill in the US Senate that addresses child-resistant packaging for e-liquids (https://www.congress.gov/bill/113th-congress/senate-bill/2581/text). The purpose of S. 2581 is “[t]o require the Consumer Product Safety Commission to promulgate a rule to require child safety packaging for liquid nicotine containers, and for other purposes.” As with all things nicotine and tobacco related, there are nuances to consider, and we will be keeping an eye on this bill as it moves along.

We are also monitoring the progress of a Modified Risk Tobacco Product Application filed by Swedish Match. CASAA has submitted a comment which you can read on our blog. If you are unfamiliar with this subject, our Chief Scientific Officer, Dr. Carl Phillips, has provided background and information here.

What you can do to help

We have spent the past year developing connections with concerned consumers and professionals with experience in legislative affairs. However, the success of our efforts still hinges on participation. Among the most important things advocates can do right now is to spread the word. Tell your friends to join CASAA, help promote our current calls to action, and forward this email to everyone you know who enjoys e-cigarettes and reduced-risk tobacco products.

As the 2015 legislative sessions move forward, we will work diligently to update our membership as to the introduction and progress of legislation that might threaten our access to, and enjoyment of, low-risk alternatives to smoking.