House Moves to Update Synthetic Nicotine Regulations

Posted by Robert Taney on

House Moves to Treat Synthetic Nicotine as Tobacco

The US House of Representatives has moved to update regulations on synthetic nicotine. This follows the demand earlier this fall, when Tobacco-Free Kids petitioned the FDA and demanded that they regulate synthetic and non-tobacco nicotine in the same manner that they treat tobacco. The FDA has thus far neglected to expand their power to include synthetic nicotine.

The reason for the hesitancy is the guarantee of court challenges. The wording of the 2009 Tobacco Control Act is very clear: “The term ‘tobacco product’ means any product made or derived from tobacco that is intended for human consumption, including any component, part, or accessory of a tobacco product (except for raw materials other than tobacco used in manufacturing a component, part, or accessory of a tobacco product).”

 

The Clarifying Authority Over Nicotine Act

Anti-vapers have made their next move, with The Clarifying Authority Over Nicotine Act. House Bill HR 6286, was introduced on December 14, 2021. The bill would make synthetic nicotine subject to the 2009 Tobacco Control Act. These changes to the Tobacco Act would force the FDA to regulate synthetic nicotine.

HR 6286 changes the language of the Tobacco Control Act to say: “Any product made or derived from tobacco, or containing nicotine from any source.”

Members of the nightshade family also contain nicotine. Food and plant products, “Shall not be considered a tobacco product if it contains not more than trace amounts of nicotine and such nicotine is naturally occurring.”

 

Plants Containing Nicotine

Tomatoes and eggplants are not classified as tobacco if their naturally occurring nicotine is present in trace amounts. Tobacco leaves are 5 to 7 percent nicotine. Tomatoes and eggplant are not used commercially for nicotine manufacturing and contain much less than this. If selective breeding or genetic engineering was used to increase the nicotine in tomatoes, they would be classified as tobacco as well.

 

Never About Nicotine

At Kure Vapes, our goal is to provide current vapers and combustible cigarette users with ash free alternatives. Ideally, our customers will continue to lower their nicotine intake and sales figures suggest that this is what occurs in most cases. We hope all our customers have the goal of a nicotine and vape free lifestyle as their endgame.

Here is what former FDA chief Scott Gottlieb said about nicotine and vaping in a 2018 press release:

“What primarily causes death and disease from tobacco use isn’t the nicotine in these products. It’s the act of lighting tobacco on fire to free that drug for inhalation. While it’s the addiction to nicotine that keeps people smoking, it’s primarily the combustion, which releases thousands of harmful constituents into the body at dangerous levels, that kills people.”

Gottlieb stated on many occasions that it would be a net gain if all adult combustible cigarette users were to switch to vaping. He is no fan of the vaping industry but was too much of a scientist to deny this obvious reality.

 

Prospects for Bill

House Bill HR 6286 has been referred to the House Committee on Energy and Commerce. Hearings have not yet been scheduled but are expected early this year. HR 6286 is sponsored by New Jersey Democrat Mikie Sherrill.

HR 6286 was co-sponsored by Illinois Democrat Raja Krishnamoorthi, and the lone Republican backer is Utah’s Chris Stewart. If the bill were to make it to the Senate, an identical combination of Democratic Senators joining forces with a solitary Utah Republican who is opposed to adults consuming nicotine in any form is guaranteed.

The anticipated GOP sweep in 2022 midterms could break in one of two ways. The Democrats, eager to shore up flagging support in the suburbs, may try to push the bill through to appeal to parents. Far more Americans live in the suburbs than in the urban core or rural areas. Shoring up this area of support will be crucial for both parties.

Unfortunately, this bill does nothing to address underage vaping and only denies adults access to the flavors they prefer and targets independent vape juice manufacturers. The restrictions placed on vaping in the last two years are as harsh as possible. 

The other potential fate of the bill is Washington gridlock, and a regulation averse GOP letting the matter grind to a halt in the tightly divided chamber. Vapers have not proven to be an effective single issue voting group to date, but still make up a sizeable block in the ten odd states and handful of districts that are still up for grabs. If vapers are to be taken seriously, we need to make sure our voices are heard. Casaa.org is an excellent resource for activism and information.

 

Decline in Youth Vaping Ignored

It was an increase in teen vaping between 2016 and 2018 that Representative Sherrill cited in her press release to justify yet another restriction on adult access to vape juices. She claimed that the new law would close, a “Loophole allowing bad actors in the vaping industry to evade Food and Drug Administration (FDA) regulations and sell nicotine products targeted at children.”

The evidence she cited for these "bad actors" was the Youth Tobacco Survey of 2018. The 2018 survey was chosen because it paints vaping in the worst possible light. The number of minors vaping has fallen significantly since 2018, from 5.4 million to 3.6 million to 2 million between the 2019 and 2021 Youth Tobacco Survey.

Referring to 2018 in an interview with Vox, ex-FDA head Scott Gottlieb said, “The dramatic spike of youth [vaping] — that was driven in part at the very least if not largely by Juul.” Yet Juul, in partnership with Altria, and the other Big Tobacco closed vape systems like MyBlu and Vuse are the primary beneficiaries of a law that closes the synthetic nicotine “loophole”.

Closed/Prefilled vaping systems have also benefited from the PACT Act, USPS Mail Ban, adult signature on delivery, and PMTAs. Add in Tobacco 21, and you have a host of safeguards to reduce underage vaping that did not exist in 2018. All but Tobacco 21 target the independent vaping industry and enhance Big Tobacco's market position, whether through funneling vapers back onto combustible cigarettes or giving the prefilled tobacco vapes that they manufacture  unchallenged market dominance. 

 

Save Money and Switch to Refillable Vapes

Tobacco flavored prefilled vape pods have the advantage of being sold direct to consumer and not online, therefore avoiding the USPS shipping ban. But none of this cancels out the fact that refillable devices made by the independent vaping industry are a much better value.  

It takes FORTY THREE 0.7ml Juul pods to equal a single $20 30ml of salt nic vape juice. Those 43 Juul Pods cost about $20 per 4 pack. The math is clear, you are paying ten-fold more per ml of Juul e-liquid. Even if you live in an area with a flavor ban, it pays to use a refillable device. You could pitch your refillable device in the trash after each bottle and still end up ahead financially. 

 

Why Kids Vape

The Youth Tobacco Survey of 2019 found that minors start vaping for reasons that have nothing to do with the availability of flavors. Were we to believe that a high school senior craves the blue raspberry flavor to such an extent they will pay $20 for the privilege, risk getting addicted to nicotine and face expulsion or suspension from school if caught?

The top three reasons minors vape are curiosity, friends or family who vape, and vape tricks. And it is through peers that they were obtaining vapes back in 2018, which is why Tobacco-21 was the most effective piece of legislation for reducing the rate of teen use. For the record, 2019 was chosen because this was the year that vaping rates began to drop among minors.

 

The Politics of Vaping and Vitamins?

The bipartisan combination of GOP Senator Orrin Hatch and Democratic Tom Harkin managed to shield the health supplement industry from regulation, but vaping does not currently have powerbrokers ready to go to the mat to protect adult access to the vaping flavors and devices they prefer. Instead, vaping confronts Michael Bloomberg and the hundreds of millions he has spent to extinguish vaping for adults.

Vaping, despite the obvious bad optics of being associated with an addictive chemical, has a stronger empirical case than vitamin supplements. Vaping destroyed nicotine replacement therapy as smoking cessation in a gold standard, peer reviewed study published in the high impact New England Journal of Medicine. You would have to look long and hard to find a study of similar stature that supports the use of vitamin supplements.

The National Health Service (NHS) in the UK has discarded herbal medicine, homeopathy, and chiropractic care as ineffectual, while at the same time promoting vaping. Natural health treatments have many influential supporters, including Prince Charles. But UK public health policies are not set by the whims and wallet of a single man.

The NHS hosts a website titled Using E-Cigarettes to Stop Smoking and will soon be offering prescription vapes. This is an shrewd and impactful decision. Smoking and vaping are disproportionately habits of the marginalized and those with less access to services. Incentivizing the most vulnerable citizens of the UK to switch from combustible cigarettes to vaping is a humane public policy. Denying adults access to the vape flavors and devices they prefer is not. 

In related news, cigarette sales increased for the first time in 20 years during Q3 and Q4 2021. 


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