The State of Vape: The Aftermath of H.R. 2339

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The Reversing the Youth Tobacco Epidemic Act of 2019 (H.R. 2339) passed the House of Representatives by a largely party-line vote of 213-195. 208 Democrats and five Republicans voted for H.R. 2339, while 177 Republicans, 17 Democrats, and one Independent voted against H.R. 2339. Seven Democrats and 15 Republicans did not vote on this bill.

Rep. Frank Pallone (D-NJ) was the main sponsor of the bill, along with 126 other co-sponsors. One notable co-sponsor is Rep. Donna Shalala (D-FL), who served as the Health and Human Services secretary in the Bill Clinton administration from 1993 to 2001. Shalala is also a vocal critic of the industry. “Vaping is the public health crisis of the 21st century,” she said.

A notable and interesting vote against H.R. 2339 was Rep. Cedric Richmond (D-LA), who is also the co-chair of current presidential candidate Joe Biden’s 2020 campaign. Rep. Jim Clyburn (D-SC), who is also another Biden supporter and the House Majority Whip, abstained from voting. These are interesting stances from the Biden camp as Biden has been very vocal in his opposition to the vape industry. Biden suggested early in his campaign that he will support a federal flavor ban and will most likely support stringent regulations against the vaping industry that are in line with his Democratic colleagues.

Across the aisle, Rep. Greg Walden (R-OR) noted inconsistencies in the Democrats’ prohibitions on vape and the Democrats’ stance on marijuana legalization. Rep. Walden voted no on H.R. 2339. "Denouncing smoking tobacco in all forms while embracing the (decriminalization) or legalization of marijuana is at best inconsistent when considering long-term health outcomes,'' he said.

There was some opposition in the Democratic Party to H.R. 2339. Rep. Yvette Clarke (D-NY) had a more interesting take as to why she opposed the bill. “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 by a police officer,” she said. Clarke’s district is majority African-American. African-Americans tend to prefer menthol eLiquids and cigarettes over other traditional tobacco products. “A ban that targets menthol products but ignores other premium tobacco products unduly burdens the black community,” she also said.

More Democrats joined Republicans on H.R. 2339. This may lead to some interesting questions as politicians begin to learn more and more about the vaping industry. One notable abstention is Rep. Tulsi Gabbard (D-HI), another 2020 presidential candidate who is also serving in Congress. She did not vote on the bill, and this makes her even more of a wild card for the vape industry.

The Trump administration replies

Quickly after the House voted on H.R. 2339, the Trump administration released a policy statement regarding the bill. “The Administration opposes H.R. 2339,” they said. “This bill contains provisions that are unsupported by the available evidence regarding harm reduction and American tobacco use habits and another provision that raises constitutional concerns.”

This policy statement also addressed other concerns raised by vapers and the vaping industry, such as T21, the use of vaping as a harm reduction technique, and remote retail sales. The administration added, “Problems surrounding such sales should be addressed through the application of age verification techniques rather than, as this bill would do, prohibiting such sales entirely.”

The Trump administration also addressed the efforts to spin off the regulation of tobacco products into its own agency. This new yet-to-be-named agency will be under the Department of Health and Human Services. “The bill takes the wrong approach to tobacco regulation. Rather than continuing to focus on the FDA’s Center for Tobacco Products, Congress should implement President Trump’s budget proposal to create a new, more directly accountable agency within the Department of Health and Human Services to focus on tobacco regulation. This new agency would be led by a Senate-confirmed Director and would have a greater capacity to respond to the growing complexity of tobacco products and respond effectively to tobacco-related public health concerns,” the statement said.

While the bill will not be expected to pass the Senate due to Republican control, should the bill make it to President Trump’s desk, his advisors are strongly recommending that he veto the bill.

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