CASAA Vapor Update for July2017
Opportunities to Take Action!
- Post a comment on the Citizen Petition to FDA – Take Action!
- Help us send letters to HHS Secretary Tom Price – Click here for details!
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Creeping Prohibition through Local Government Action
Unlike state legislatures, local governments are more accessible and more easily influenced by relatively smaller sums of money. For example, enacting a comprehensive anti-tobacco policy that includes restrictions on vaping can make a small town eligible for grants from state funds and federal agencies. The size of these grants might not turn any heads in your state capitol, but for a small to mid-sized city it can make a huge difference.
Another strategic advantage of advancing policy at the local level is that it is difficult to track. According to the Census Bureau, there are 89,004 local governments in the United States. Obviously, not all of these lawmakers are being lobbied by anti-tobacco groups, but not all of them need to be. The real goal is to enact policies that affect the greatest number of people (voters) and then scale the policy up to state legislation.
The march of anti-vaping legislation across the country began in 2009 with passage of an indoor vaping ban in Suffolk County, NY. That same year, vaping was folded into indoor smoking bans in New Jersey cities and counties. By the end of 2009, New Jersey became the first state to include vaping in its indoor clean air act. And now, the same tactic is being used to advance flavor bans and raise the minimum legal purchase age to 21. Most notably, municipalities in California’s Bay Area are seeing a swarm of anti-flavors ordinances.
What began as a focus on removing menthol cigarettes from the market now includes flavored vapor products. Depending on how these proposals are written, such a ban could be limited by applying only to C-stores, pharmacies, and grocery stores. Or, in the case of poorly written legislation in New York City and New Jersey, a flavor ban would prohibit ANY flavored e-liquid, including tobacco.
Some may feel that federal law does not allow states or municipalities to enact stricter tobacco regulations. But federal preemption generally applies to governments making laws that are less restrictive than federal regulations. While the Family Smoking Prevention and Tobacco Control Act (FSPTCA) preempts governments from setting different manufacturing, labeling, and tobacco standards, it does not, for example, preempt stricter regulations regarding the sale of tobacco products by state and local governments. (Local governments are also subject to any preemption that may be established by their state, but few states preempt local governments when it comes to tobacco.) At least one town in Massachusetts has attempted to ban the sale of tobacco and nicotine products completely. Had it not been for angry townsfolk (carrying the proverbial torches and pitchforks), it would have taken a creative legal solution to overturn the decision. San Francisco’s flavor ban–recently passed by the Board of Supervisors–is also not preempted by federal or state law. In fact, the only preemption in California law related to tobacco/nicotine sales is for licensing of tobacco vending machines.
In the coming weeks and months we’ll be exploring how best to fight back and maybe even prevent local attacks on harm reduction from being successful. Organizing at the local level will be a focus of our presentation at VTA’s conference in July.
An appropriate place to get started is by monitoring your local government and events in your area.
- Often, groups promoting a local policy will host town halls or other small events to inform the community of the issue.
- Generally, local governments are required to notify stakeholders when ordinances will be heard that affect them. In the case of tobacco, cities will often send notices to businesses that are licensed as tobacco retailers. Depending on your state or local laws, this likely won’t include vape shops.
- Monitoring announcements from your city hall or ads in local publications will be helpful in alerting you to these events. Search for your local government here. (Or simply Google your city name + city council.)
- Set up a Google Alert for words like “tobacco” and “flavored tobacco” and “indoor smoking.”
When you become aware of an attack on tobacco harm reduction in your area, please share it with us (yes, we are crowd sourcing this intel because local legislative tracking services are wildly expensive).
- Send an email to [email protected] and write “Local Alert” in the subject line.
- You can also send us a message through our main Facebook page here.
- AND make sure you share the news with your friends and local vape shops.
Additional coverage:
06.20.17 – “SF Supervisors OK ban on sale of flavored tobacco” – Rachel Swan – SF GATE
06.21.17 – “San Francisco Passes One-Size-Fits-All Flavor Ban, Condemns Smokers to Status Quo” – CASAA
06.22.17 – “Tobacco pressed by local laws” – David Bennett, Convenience Store Decisions
06.22.17 – “Middletown Bans Flavored Tobacco” – Olga Enger – Newport This Week
06.23.17 – “Vernon Hills may be next to raise age to buy tobacco to 21” – Mick Zawislak – Daily Herald
06.23.17 – “MAINE SENATE PASSES MINIMUM TOBACCO PURCHASING AGE INCREASE” – Charlie Minato – Halfwheel
06.23.17 – “Tobacco 21 Bill Voted Through New Jersey Legislature” – Preventing Tobacco Addiction Foundation
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Agricultural Appropriations Language for FY2018 Budget Bill
As most people know, for the last two years, efforts to change the predicate date have focused on the Cole-Bishop Amendment to the Agriculture Appropriations Bill. Just this week, the House Agriculture Appropriations Subcommittee approved by a voice vote the 2018 appropriations bill, and as part of the base bill (not an amendment), there is language that would effectively change the predicate date for newly deemed tobacco products (including vapor). However, the language in the bill is raising concerns and debate in the vapor community.
It is important to emphasize that we are no longer talking about the “Cole-Bishop amendment” because this language is in the base bill. And although HR 1136 remains a useful tool in gathering support for the language in the Ag Approps bill, it is a completely separate–and now different–piece of legislation. Specifically, the new language in Section 753 of the Agricultural Appropriations bill includes potentially troubling language involving “characterizing flavors,” in the context of the FDA being directed to promulgate a rule regarding standards.
The implications of adding the flavors language is still being discussed and the source of the language is still a matter of speculation. While it is tempting to simplify the inclusion of “characterizing flavors” in the Ag Approps language to mean “a ban on flavors,” it is important to remember that simple words in complicated laws rarely have straightforward interpretations.
It is also important to note that the FDA already has the authority to regulate flavored tobacco products and can promulgate a rule at any time. Of course, the standard comment period and OMB/OIRA review process still applies, but in the case of the appropriations language, the agency is being directed by Congress to issue proposed rules within 21 months of the passage of the appropriations bill.
We are still in the information-gathering and analysis stage and will be working cooperatively with other stakeholders to determine our best course of action to preserve the diversity of products that consumers rely upon.
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State Elections 2017
New Jersey and Virginia held primary elections on June 13th. CASAA is looking for a volunteer in each state to help gather the results, monitor campaigns, and help build our database of candidates so we can send out our candidate survey.
For a preview of what the end result will look like, please see our voter guide from 2016 here.
If you are interested in volunteering, please send an email to [email protected] with the subject “CASAA Voting Guide 2017.”
As always, make sure you are Registered to Vote!
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ICYMI – There was a Snus Convention in St. Louis!
(05.31.17) A remarkable thing happened this past weekend. The first-ever snus convention in the United States was held in St. Louis, Missouri. Down a rather nondescript hallway on the third floor of a hotel, there was a small conference room with a speaker’s dais, projection screen, and about 40 chairs. Despite its modest appearance, one couldn’t escape the feeling you were witnessing something of great importance… read more
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06.15.17 – Kansas Legislature Sends Vapor Tax Reform Bill to the Governor
HB 2230 has passed both chambers of the Kansas Legislature with only one opposing vote. This bill changes the tax on vapor products from 20c/ml to 5c/ml.
Thanks are certainly in order for everyone that took several opportunities to contact their lawmakers and support this change. In particular, special thanks are in order for Spencer Duncan of the Kansas Vapers Association worked tirelessly to advance this legislation and bring much needed reform to the states vaping tax law.
For a timeline of events, please see the Kansas Vapers Association Facebook group here.
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Brian Fojtik – Big Government, Public Health, and E-cigarettes (3 part series)
- Part 1 https://ricochet.com/439933/big-government-public-health-and-e-cigarettes-part-i/
- Part 2 https://ricochet.com/439935/big-government-public-health-and-e-cigarettes-part-ii/
- Part 3 https://ricochet.com/439936/big-government-public-health-e-cigarettes-part-iii/
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American Enterprise Institute (AEI) Sensible regulation of e-cigarettes: Opportunities for reform
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#FDAdeeming – Comment on the Citizen Petition
A Citizen Petition has been submitted to the Food and Drug Administration (FDA) requesting that the agency issue “final guidance or regulations describing the recommended or required contents of premarket submissions…” In addition to requesting this final guidance, petitioners (NJOY et. al.) are requesting that the compliance period be extended by 24 months… read more and take action
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Recent State Alerts
- California tax on tobacco (and e-cigarettes) went into effect July 1. (article)
- MA – Stop a 40% tax on vaping!
- NYC – Stop the city from closing down vape shops!
- PA – Take action to fix the vapor tax! (Updated for HB 1477)
- DE – Stop Governor Carney from Taxing Vapor Products!
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Local Alerts
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- Minnesota – Local efforts to raise the purchase age to 21, ban indoor use, and restrict the sales of flavored products are flaring up–similar to what is happening in California. We will be keeping this table updated as details emerge. (H/t to CASAA Volunteer, Skip Murray, for monitoring local governments in MN, getting this list started, and keeping us updated).
- Los Gatos, CA – On May 16th, the flavor ban ordinance was passed as part of the consent agenda with no opposition. While Los Gatos’ ordinance does allow for specialty retailers (those with 60% of their gross sales coming from “tobacco products”) to continue selling flavored vapor products, the most common retail environments where smokers would become aware of vaping can now only sell tobacco flavored products.
- Contra Costa Co., CA – A hearing for a flavor ban ordinance (item D.2., Ordinance 2017-01 on the agenda) was held on Tuesday, June 13th. Video of the meeting is available here. The board moved to bring back amended versions of the flavors ordinance and a zoning ordinance on July 11th.
- San Francisco, CA – A flavor ban has been approved by the Board of Supervisors and is heading to a final vote on Tuesday, June 27th. Click here for our Call to Action!
- Yellowstone County, MT – The county’s department of health, Riverstone Health, will hold a public hearing about a proposed indoor vaping ban (Rule #7). This ban covers all public indoor spaces and workplaces including vapor shops. Click here for our Alert.
This week, the House Appropriations Subcommittee on Agriculture, Rural Development, Food and Drug Administration, and Related Agencies marked up its 
What the language means. The language does not “ban” flavors, it does not require FDA to ban flavors nor, for that matter, even consider banning flavors. If passed, the language would require FDA to start a rulemaking process on “characterizing flavors” within 21 months of the effective date of the Act and to complete the process within 36 months. Since the bill likely wouldn’t pass or be signed until January 1, 2018 – or thereafter – that means FDA would have to initiate its rulemaking process by September 2019 and somehow complete that rulemaking process by January 1, 2021.
PVA Board Member Amelia Rivera and VTA State Affairs Manager Jake Butcher testified before the House Finance Committee on June 27, 2017.
Picture of perfect collaboration. VTA worked hand-in-hand with Ohio Vapor Trade Association and its lobbyist,providing insights and guidance, drafting testimony, travling to Ohio to testify in Committee on national trends, current health related studies on vapor, as well as the federal regulations affecting the vapor industry. VTA also initiated multipel calls to action and collaborated with CASAA so that the powerful the message from consumers also reached the Ohio legislators. Thanks to all who worked so hard to defeat this regressive tax policy. And a special congratulations to OHVTA President James Jarvis, who showed remarkable leadership in his first year, the entire OHVTA Board and team which has been dogged in their defense of vapor, and, Charlotte Hickcox, of ZHF Consulting, who provided steady, sound and smart guidance on the ground in Columbus.
Local Flavor Bans Decimate Vapor Businesses
Utah to Begin Early Implementation of Deeming: Labeling Requirements to Change on July 1, 2017
Iowa Sales Tax on Online Sales Effective July 1, 2017
Kansas Vapor Taxes Cut by 75%
