On Friday, the House of Representatives approved new legislation that bans the sale of flavored e-cigarettes and other flavored tobacco products. The bill was contentious among the Democratic caucus this week but ultimately passed with a vote of 213-195. The bill will now advance to the Senate but the Trump administration warned in a notice on Thursday that the President may veto the legislation if it makes it to his desk in its current form.
While the FDA did issue a temporary ban on flavored vaping products at the start of this year, many anti-vaping advocates have called out the initial order for leaving massive loopholes—like the exclusion of menthol and tobacco-flavored e-liquids from the crackdown, especially considering how many fruit- and candy-flavored products fall under these labels.
And it turns out the Administration wants to leave these loopholes the way they are, according to the notice released yesterday from Trump’s executive office. In it, Trump’s senior advisors say that they’d recommend the President “veto” the current iteration of H.R. 2339—the Youth Epidemic Tobacco Act that’s meant to, in theory, curtail the access and allure of tobacco products to our nation’s youths.
“The Administration cannot support H.R. 2339’s counterproductive efforts to restrict access to products that may provide a less harmful alternative to millions of adults who smoke combustible cigarettes,” the officials state in the notice. In particular, the administration calls out “the bill’s prohibition of menthol e-liquids” and “the bill’s approach to remote retail sales,” which they state could more easily be addressed through “the application of age verification technologies,” in place of a blanket ban.
It’s a move that would, as many experts point out, take the wind out of an already pretty hollow law. The advisors also suggest a more narrow definition of what “child-centric” advertising looks like under H.R. 2339. The way it’s worded now, the bill specifically prohibits all vaping-related ads targeted at folks that are under twenty-one—a criteria that might not satisfy the hilariously named “stringent vagueness test” applied to speech regulations under the US Constitution.
“The Food and Drug Administration is conducting regular surveillance of—and, when appropriate, taking enforcement measures against—websites, social media, and other publications that advertise regulated tobacco products,” these advisors argue. But putting out these fires on a case by case basis might not be enough for advocates that want to hold the entire vaping industry accountable.
According to the Associated Press, some members of the Congressional Black Caucus also took issue with the bill arguing that it could disproportionately impact the black community which smokes menthol cigarettes at a higher rate than other demographics. Representative Yvette Clark recalled the case of Eric Garner who was choked to death by an NYPD officer after being stopped for the crime of selling cigarettes on the street. She said that “White adult smokers would see little difference in their lives after this ban, while black smokers could face even more sweeping harassment from law enforcement if the hint of menthol smoke can justify a stop.”