Vaping

To Protect 'Children' From E-Cigarettes, Congress Imposes New Restrictions on Everything Related to Vaping of Any Kind

The law bans mail delivery of vaping products and requires all vendors to comply with burdensome tax reporting rules.

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Buried in the enormous spending/COVID-19 relief package that Congress approved this week is a bill that imposes new restrictions on the distribution of all vaping equipment, parts, and supplies, including a ban on mailing them. The provision illustrates not only how utterly irrelevant legislation can be slipped into unread, must-pass bills but also how Congress warps reality through legal fictions and uses save-the-children rhetoric to justify restricting adults' choices.

Title VI of the 2021 Consolidated Appropriations Act, which appears on page 5,136 of the 5,593-page bill, is called the Preventing Online Sales of E-Cigarettes to Children Act. The bill was introduced last April by Sen. Dianne Feinstein (D–Calif.), joined by seven original cosponsors: six Democrats plus Sen. John Cornyn (R–Texas). It includes two changes aimed at complicating and obstructing online sales of vapes and e-liquid.

Feinstein's bill amends the Jenkins Act of 1949, which requires that vendors who sell cigarettes to customers in other states register with the tax administrators in those states and notify them of all such sales so they can collect the taxes that the buyers are officially obligated to pay. In 2002, the General Accounting Office (now the Government Accountability Office) found that online cigarette sellers routinely flouted the Jenkins Act and that the federal government had done virtually nothing to enforce it. Nine years later, Congress amended the law, beefing up its reporting requirements and extending it to cover roll-your-own tobacco.

The Feinstein bill further expands the Jenkins Act, redefining cigarette to include "electronic nicotine delivery systems," which are not cigarettes. It also counterintuitively defines electronic nicotine delivery system to include products that do not deliver nicotine: "any electronic device that, through an aerosolized solution, delivers nicotine, flavor, or any other substance to the user inhaling from the device" (emphasis added). That category includes e-cigarettes, e-hookahs, e-cigars, electronic pipes, vape pens, and refillable vaporizers, plus "any component, liquid, part, or accessory" used with those devices, whether shipped together with them or sold separately.

In other words, every product related to vaping, whether of nicotine, THC, CBD, lavender, or anything else, will now be subject to the Jenkins Act's burdensome requirements. According to Feinstein, a bottle of e-liquid is a cigarette; so is a bottle of herbal essential oil if you plan to vape it. A coil or pod cartridge for a nicotine vaporizer is now also a cigarette; so is a vaporizer designed for THC or CBD oil.

Feinstein's bill also requires the U.S. Postal Service to "clarify" that the ban on mailing cigarettes covers all of those products, which are not actually cigarettes and may not even have anything to do with nicotine. The new ban, disingenuously presented as a clarification of the existing ban, will take effect within 120 days of the law's passage.

These reality-defying redefinitions ostensibly are aimed at preventing the sale of e-cigarettes to anyone younger than 21, the minimum age set by federal law. "Buying e-cigarettes online is one of the easiest ways for children and teens to get their hands on these harmful products," Feinstein said when she introduced the bill. But the new burdens and restrictions go far beyond what is necessary to enforce the minimum purchase age. Requiring robust age verification for orders or an adult signature for deliveries, for example, would prevent sales to consumers younger than 21 without the expensive disruptions this law will cause.

"While there is no shortage of talk in Congress about the importance of small businesses and social distancing, the decision to shove this ban in the middle of a pandemic relief package reveals how hollow that rhetoric is," says Gregory Conley, president of the American Vaping Association, an advocacy group that supports vaping as a harm-reducing alternative to smoking. "Many Americans at risk of COVID-19 complications have been staying home and ordering their supplies online, but Congress just decided they should either pay much more for shipping or go to a retail store that may not stock the product they use to stay off deadly cigarettes."

Conley notes that shipping vaping products to minors is already illegal, and "the Food and Drug Administration has repeatedly enforced this law against bad actors in the industry." While law-abiding vendors for years have been using the postal service's ID-at-delivery option to comply with the age limit, "this will no longer be permitted."

In short, a bill presented as a commonsensical effort to enforce the minimum purchase age is actually an assault on the vaping industry and its adult customers. "If the increase in shipping costs wasn't enough, the bill also imposes huge paperwork burdens on small retailers, and backs it up with threats of imprisonment for even innocent mistakes," Conley notes. "This is not a law designed to regulate the mail-order sale of vaping products to adults; it's an attempt to eliminate it."

Thanks to Feinstein's sweeping and arbitrary definition of electronic nicotine delivery systems, the impact extends far beyond nicotine vaping. On its face, the law requires companies that sell cannabis vaping devices to comply with the Jenkins Act. It also prohibits them from mailing their products to customers. Although that is already arguably prohibited by federal law, the issue hinges on whether vaping equipment sold without any reference to cannabis nevertheless qualifies as "drug paraphernalia." As written, the Feinstein bill also imposes these burdens on federally legal products such as CBD oil and herbal extracts used for aromatherapy.

"This could have a significant effect on cannabis vaping products, even if the intent is clearly to curb nicotine products," Aaron Smith, CEO of the National Cannabis Industry Association, told Marijuana Moment. "We're making sure that Congress and the incoming administration understand that it would be a misguided waste of resources to apply this to the already heavily regulated cannabis industry. In the long run, it's important that cannabis is descheduled so it can be appropriately regulated at the federal level, clearing up ambiguities like this."

NEXT: British Culture Minister Threatens a ‘Health Warning’ on Netflix’s The Crown

Vaping E-cigarettes Tobacco Harm Reduction Marijuana Regulation Taxes Congress

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33 responses to “To Protect 'Children' From E-Cigarettes, Congress Imposes New Restrictions on Everything Related to Vaping of Any Kind

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  2. Typical to focus on the drug delivery part of it. Not say the fact that deficits have exploded and congress wants to give people 600 bucks for fucking them over using state governors as their enforcers.

    Can’t wait to hear the wailing after the illiberal democrats get control. Well bitch Molly would love it like all good nazi sjws.

  3. Guess we’ll have to buy from the local guy instead of California now. Assuming they’re still in business, anyway.

    1. Local Guy has expanded operations in the DC area.

  4. Gotta have a War On something.

    1. They should drop the pretense of incrementalism and just openly declare the “War On Everything”

  5. Not mentioned in this article is that those funding/directing the lobbying for this anti vaping legislation were/are Big Pharma and Big Tobacco, whose goals are to protect/preserve future markets for cigarettes (which are 100 times deadlier than vaping nicotine) and ineffective (i.e. Nicorette and Nicoderm) and less than safe (i.e. Chantix) FDA approved tobacco cessation drugs.

    Back in 2014, Big Pharma and Big Tobacco joined forces to lobby Obama’s FDA Director of Tobacco Products Mitch Zeller (who had been a lobbyist for GlaxoSmithKline from 2002-2013 lobbying Congress in collaboration with with Philip Morris/Altria to enact the 2009 Tobacco Control Act, and lobbied FDA to ban vapor products in 2009, which a federal court struck down).

    Front groups for Big Pharma’s lobbying campaign include the Campaign for Tobacco Free Kids (which received hundreds of millions of dollars from J&J’s RWJF), American Cancer Society, American Lung Association, American Heart Association, American Academy of Pediatrics, American Medical Association, and many others, whose policy goal has been to ban and/or severely restrict the future sale and marketing of very low risk smokeless tobacco and nicotine vapor products to protect future sales of cigarettes and FDA tobacco cessation drugs.

    FDA’s 2014 Deeming Rule (that was lobbied for by Big Pharma and Big Tobacco) recently banned (on September 9) the nationwide sale of all nicotine vapor products that haven’t been approved by the FDA (even though the FDA hasn’t approved any nicotine vapor products), which protects cigarette markets (as FDA has approved all far deadlier cigarettes).

    After declining for decades (and after declining 8% last year), cigarette sales have started to increase in the US this year (thanks to the thousands of local, state and federal laws that banned, taxed and severely restricted vapes to purportedly protect children).

    1. FDA still hasn’t began enforcing its September ban on the sale of >99.9% of nicotine vapor products (whose manufacturers couldn’t afford the tens of millions of dollars to submit an application to FDA), but cigarette sales and smoking rates will almost certainly increase further after FDA begins sending letters to thousands of vapor manufacturers (and 15,000+ vape shops) telling them to stop selling vapor products.

      1. Well, it’s 5593 pages and government workers are slow readers, so expect the cease and desist letters to go out about AD 2029.

      2. I have noticed more people smoking lately than probably at any time in the past 20 years. Of course, the gumbmint collects a lot more tax revenue from cigarettes than from vapes, so I am sure they are happy. It also gives all those anti smoking groups a reason to exist again.

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  7. Instead of worrying about kids being able to buy on-line vape products they should worry that little children can buy automatic weapons online and have them over-nighted straight from Amazon. Which I’ve been assured – possibly from Feinstein herself – is a real thing.

    Speaking of Feinstein, last I heard I thought she had accidentally locked herself inside her car. Who the fuck let her out?

    1. Politically ignorant carjackers?

  8. What if my vape pen is co-shipped with a first amendment protected obscene, pornographic, violent snuff film? Will it slip through the state nannies?

  9. So the same departments that say vapes contain tobacco, and that they cause hart attacks before people start vaping is to be trusted with information about Wuhan flu and the vaccination

  10. Should I stock up on candy cigarettes and bubble gum cigars?

  11. This PACT Act is going to create many thousands of new cigarette smokers and cause many thousands of ex-smokers to return to smoking cigarettes. These bans and tax hikes are only contributing to a HUGE black market vape industry. That’s going to lead to an increase in people getting hurt by vaping DIY eliquid purchased from black market sellers who don’t know what they’re doing. Vape companies are a lot better with quality control than neighborhood drug dealers. Unfortunately, legally purchased vape products are already twice as expensive but are going to be 3X the money with all the taxes and shipping costs.

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  14. So where’s all the media attention around all those studies that showed nicotine was a significant blocker of COVID-19? And that vaping has no link to bad health? Heck; this same anti-smoking crowd even tried to ban candy cigarettes because “It looks like….”.

    [WE] Mobs rule!

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