U.S. regulation: all the bills in progress, state-by-state

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Executive summary

 

  • The legislatures of 14 U.S. states and the District of Columbia (DC) convened their 2016 regular sessions during the week beginning 4th January 2016. A further 14 states as well as three U.S. territories then convened their sessions the following week.
  • Vapour-related bills have carried from the previous session over into the 2016 regular session in ten states.
  • Two states – Kentucky and Maryland – pre-filed vapour-related bills last fall and have introduced those bills during their respective 2016 sessions.
  • Six states have already introduced bills to regulate electronic nicotine delivery system (ENDS) products in the 2016 regular session.
  • The Child Nicotine Poisoning Prevention Act of 2015, which requires e-liquid to be sold in child-proof packaging, has passed the U.S. Senate and House of Representatives and has now been signed by president Obama.
  • This is the first in a series of regular reports from ECigIntelligence on the progress of vapour-related regulation in the U.S.

 

 

 

Introduction

 

At the end of 2015, the final deeming rule by which the U.S. Food and Drug Administration (FDA) will regulate e-cigarettes and other electronic nicotine delivery systems (ENDS) as “other tobacco products” still remains unpublished after missing the original estimated publication date of June 2015.

In the absence of the deeming regulations, it is state (and to some extent local) governments that are setting the pace in e-cigarette regulation.

More vapour-related bills were introduced during the 2015 state legislative sessions than ever before: by 30th November, 43 states had considered vapour legislation.

ECigIntelligence expects even more vapour regulation to be proposed during the 2016 regular session, the scope of which will be examined in an upcoming in-depth report.

We will also be publishing regular updates on newly-proposed vapour legislation in the states, of which this is the first.

 

 

Notes on legislative sessions

 

  • Illinois and New Jersey both adjourned their 2015 sessions on 12th January.
  • Massachusetts and New York will not adjourn their 2016 regular sessions until next April (2017).
  • The legislatures of four states – Montana, Nevada, North Dakota, and Texas – meet biennially (i.e. one year in session, one year out of session). Because all four of these states convene for regular session in odd-numbered years (such as 2015), these legislatures will not meet as part of a regular session this year.

 

 

 

Federal legislation

 

At the federal level, the United States convened its 114th Congress on 5th January. Congress is expected to adjourn its 2016 legislative session around 30th October.

Senate Bill 142, or the Child Nicotine Poisoning Prevention Act of 2015, passed the Senate on 10th December 2015 and the House of Representatives on 11th January. The enrolled bill requires e-liquid to be packaged in accordance with the Consumer Product Safety Commission (CPSC) standards and testing procedures for special packaging that is difficult for children under five years of age to open. Now, the bill goes to the president, who may sign or veto it.

 

 

California

Term referring to ENDS products: electronic cigarettes

 

Carry-over legislation 

Senate Bill 213 and Senate Bill 214 would expand the definition of tobacco products to include electronic cigarettes, and thereby have the effects of (1) requiring manufacturers, importers, distributors, wholesalers, and retailers to be licensed; and (2) imposing a tax on electronic cigarettes, based on the wholesale cost, at a rate determined annually that is equivalent to the cigarette tax rate ($2.87 per package of 20 cigarettes in 2015). For these bills to be officially designated as carry-over bills, they must pass the Senate by 31st January.  Assembly Bill 216, which is the same as Senate Bill 213, must pass the Assembly by 31st January to be officially designated as a carry-over bill.  Assembly Bill 226 would expand the definition of smoking to include “the use of an electronic smoking device that creates an aerosol or vapor”, and would (1) make the act of furnishing ENDS to minors a misdemeanour; (2) require e-cig retailers to pay a one-time licence fee; (3) require all vapour products to be sold in child-proof packaging; and (4) make the use of electronic cigarettes in some restricted locations a violation punishable as an infraction.

 

 

Florida

Term referring to ENDS products: nicotine dispensing device

 

2016 introduction 

House Bill 1143, which was introduced on 6th January, revises the definition of smoking to include nicotine dispensing devices, in order to prohibit vaping under the Florida Clean Indoor Air Act.

 

 

Indiana

Terms referring to ENDS products: electronic cigarette and e-liquid

 

2016 introductions 

Introduced on 5th January, House Bill 1035 resolves substantive problems in the Indiana Code, which includes one correction regarding ambiguous language in the “tobacco product” definition. The bill revises “tobacco product” to means a product that contains tobacco and is intended for human consumption, including e-liquid that contains nicotine.

House Bill 1386, which was introduced on 13th January, allows the Alcohol & Tobacco Commission to (1) investigate; (2) enforce penalties; and (3) suspend or revoke tobacco sales certificates for failing to pay a civil penalty, if a certificate holder sells or distributes tobacco products or electronic cigarettes at a location determined to be a public nuisance or at which prohibited conduct or acts occur.

Also introduced on 13th January, House Bill 1393 removes the controversial security requirements concerning e-liquid production that were established in 2015 by Indiana House Bill 1432.

Senate Bill 395, introduced on 12th January, removes the requirement that the label on an e-liquid container must have a scannable code, including a QR code, tied to a batch number.

 

 

Iowa

Term referring to ENDS products: vapor product

 

Carry-over legislation 

House Bill 306 would (1) require all ENDS retailers to be issued permits; and (2) redefine vapour products as tobacco products, which means that a tax would be levied on e-cigs.

 

 

Kansas

Term referring to ENDS products: electronic cigarette

 

Carry-over legislation 

Senate Bill 203 would (1) require all ENDS retailers to be issued a licence; (2) require them to post a sign that reads: “By law, cigarettes, electronic cigarettes and tobacco products may be sold only to persons 18 years of age and older.”; and (3) prohibit e-cigs from being sold in a vending machine in any establishment open to minors.

 

 

Kentucky

Term referring to ENDS products: no standard term yet, but House Bill 93 (see below) defines electronic cigarettes

 

Pre-filed legislation 

In November, House Bill 93 was pre-filed in the Kentucky House of Representatives to (1) create a definition for “electronic cigarettes” and (2) amend the definition of “tobacco products” to include “electronic cigarettes” for taxation purposes. This bill was introduced in the House on 5th January, and referred to the Appropriations and Revenue Committee.

 

2016 introduction 

House Bill 247, introduced on 14th January, defines “electronic cigarette” and includes the term in the definition of tobacco products. It also imposes an excise tax at the rate of 18% of the amount paid for e-cigs.

 

 

Maryland

Term referring to ENDS products: electronic device

 

Pre-filed legislation 

On 5th October, Senate Bill 114, which establishes penalties for furnishing vapour products to minors, was pre-filed in the Maryland Senate.

Senate Bill 114 was introduced and read for the first time on 13th January. The bill authorises “a county health officer… to issue a citation for a violation of this Act” and establishes different levels of civil penalties depending on whether the violator is a private individual or licensed retailer.

 

 

Massachusetts

Term referring to ENDS products: electronic smoking device

 

Carry-over legislation

House Bill 2050, which accompanied Senate Bill 1119, would (1) redefine “tobacco products” to include ENDS, and (2) prohibit the sale of vapour products to under-18s. Last action: the Joint Committee on Public Health held a hearing on 14th July.

House Bill 2021 would redefine “tobacco product” to include ENDS and would prohibit the sale of “tobacco products” to anyone under the age of 21. Last action: the Joint Committee on Public Health held a hearing on 14th July.

House Bill 2434 would (1) prohibit the use of ENDS by minors, and (2) impose an excise tax on ENDS. Last action: the Joint Judiciary Committee held a hearing on 3rd November.

Senate Bill 732 would require child-resistant packaging of nicotine liquid containers. Last action: the Joint Committee on Public Health held a hearing on 14th July.

 

 

Michigan  

Term referring to ENDS products: no standard term

 

Carry-over legislation

Senate Bill 231, or the Youth Tobacco Act, would prohibit vapour products being sold to minors and require retailers to post a sign to that effect.

House Bill 4431 would (1) prohibit the sale to minors of electronic cigarettes or any oral device that provides vapour nicotine; and (2) require liquid nicotine containers to be sold in child-resistant containers.

 

 

Missouri

Term referring to ENDS products: vapor product

 

2016 introduction

On 7th January, House Bill 2111 – which prohibits needy families from using welfare assistance cards to purchase “tobacco products”, including vapour products – was introduced into the Missouri Legislature.

 

 

New Hampshire 

Terms referring to ENDS products: e-cigarettes and liquid nicotine

 

2016 introductions

Senate Bill 422 was introduced on 6th January to clarify terminology in the law governing the tobacco use prevention and cessation programme. For the purposes of the programme, “tobacco” would include e-cigarettes and liquid nicotine.

House Bill 1159 modifies the definition of “tobacco products” to include “smokeless cigarettes” when applied to retail licensing provisions.

 

 

New York

Terms referring to ENDS products: electronic cigarette and e-cigarette

The New York Legislature is considering 20 vapour-related bills, listed below, that carried from the 2015 session over to the 2016 regular session.

 

Carry-over legislation: taxation 

Assembly Bill 296, which provides for the taxation of electronic cigarette cartridges as tobacco products, was referred to the Assembly Ways and Means Committee on 6th January.

Senate Bill 722, which is the same as Assembly Bill 296, was referred to the Senate Investigations and Government Operations Committee on 6th January.

 

Carry-over legislation: age restrictions

Assembly Bill 6643, which prohibits retailers from selling tobacco products, herbal cigarettes, liquid nicotine, shisha, electronic cigarettes or smoking paraphernalia to individuals under 21 years of age, was referred to the Assembly Health Committee on 6th January.

Senate Bill 3456, which increases the age to purchase tobacco products from 18 years to 21 years, was referred to the Senate Health Committee on 6th January.

Assembly Bill 237, which increases the age to purchase tobacco products from 18 years to 21 years, was referred to the Assembly Health Committee on 6th January.

Senate Bill 684, which requires the presentation of photographic identification for the purchase of tobacco products (including e-cigs) and alcoholic beverages, was referred to the Senate Health Committee on 6th January.

 

Carry-over legislation: age restrictions and public place use

Assembly Bill 1496 has three primary objectives: (1) to prohibit the vaporisation of nicotine within electronic cigarettes in certain areas; (2) to increase the purchasing age for tobacco products and electronic cigarettes from 18 to 21; and, (3) to require the Department of Health to evaluate the health effects of electronic cigarettes on members of the public. On 6th January, this bill was referred to the Assembly Health Committee.

 

Carry-over legislation: public place use 

Assembly Bill 5955, which makes the restrictions relating to smoking in public areas applicable to electronic cigarettes, died in the Senate and was returned to the Assembly on 6th January. The Assembly has ordered a third reading of the bill.

Senate Bill 2202, which is the same as Assembly Bill 5955, was referred to the Senate Health Committee on 6th January.

Senate Bill 4188, which prohibits activation or use of e-cigarettes on school grounds, was referred to the Senate Health Committee on 6th January.

Assembly Bill 7154, which is the same as Senate Bill 4188, was referred to the Assembly Health Committee on 6th January.

Assembly Bill 2595, which makes the restrictions relating to smoking in public areas applicable to electronic cigarettes, was referred to the Assembly Health Committee on 6th January.

Senate Bill 4156, which is the same as Assembly Bill 2595, was referred to the Senate Health Committee on 6th January.

 

Carry-over legislation: product characteristics

Assembly Bill 635 prohibits the sale or provision of any quantity of electronic liquid used to refill an electronic cigarette or cartridge. It also defines “electronic liquid” as any liquid composed of nicotine and other chemicals that is sold for use in electronic cigarettes. On 6th January, this bill was referred to the Assembly Health Committee. 

Senate Bill 6003, which requires e-cig retailers to register with the Department of Health if they are not already registered with the Department of Taxation and Finance to sell tobacco products, was referred to the Senate Health Committee on 6th January.

Assembly Bill 852, which is the same as Senate Bill 6003, was referred to the Assembly Health Committee on 6th January.

Senate Bill 2790 prohibits the operation of a vending machine which dispenses tobacco products, including e-cigs, unless the machine is located more than 350 feet away from any building occupied exclusively as a school, church, synagogue or other place of worship. This bill was referred to the Senate Health Committee on 6th January.

 

Carry-over legislation: marketing/advertising

Assembly Bill 5164, which prohibits the use of coupons or use of a “price reduction instrument” to lower the price of certain tobacco products, including e-cigs, was referred to the Assembly Health Committee on 6th January.

Senate Bill 5221, which is the same as Assembly Bill 5164, was referred to the Senate Health Committee on 6th January.

Assembly Bill 3164 prohibits businesses from marketing or advertising vapour products to minors on Websites, online services, online applications, or mobile applications.

 

 

Ohio

Term referring to ENDS products: electronic cigarette

 

Carry-over legislation 

Senate Bill 54, which bans the sale of liquid nicotine containers that are not in child-resistant packaging, passed the Senate last June, and is currently pending review in the House Health and Aging Committee.

House Bill 168, which is the same as Senate Bill 54, passed the House last June, and is currently pending review in the Senate Transportation, Commerce and Labor Committee.

 

 

Tennessee

Term referring to ENDS products: vapor product

 

Carry-over legislation 

House Bill 673 adds the vapour from electronic cigarettes to the definition of “smoking” for the purposes of the Children’s Act for Clean Indoor Air.

Senate Bill 595, which is the same as House Bill 673, is currently pending review in the General Subcommittee of the Senate Commerce & Labor Committee.

Senate Bill 645 requires that schools change their student discipline code and policies regarding the use and possession of smoking and tobacco products on school property to include electronic cigarettes.

House Bill 520, which is the same as Senate Bill 645, is currently pending review in the Education Administration and Planning Subcommittee.

 

 

Vermont

Terms referring to ENDS products: tobacco substitute and liquid nicotine

 

Carry-over legislation 

House Bill 171, which would prohibit the use of electronic cigarettes where the use of lit tobacco products is prohibited, is currently pending review in the House Committee on Human Services.

House Bill 59 would ban the sale of flavoured liquid nicotine.

House Bill 233 proposes to tax e-cigarettes as Vermont taxes other tobacco products.

 

 

Virginia

Term referring to ENDS products: vapor product

 

2016 introductions 

Introduced on 11th January, House Bill 627 would impose a tax at a rate of 15% of the price charged by a manufacturer for a vapour product.

Senate Bill 224, introduced on 5th January, would require each school board to develop and implement a policy by 1st July 2017 prohibiting the use of tobacco products on a school bus, on school property, or at a school-sponsored activity. The bill also replaces the term “electronic cigarette” with a defined term, “nicotine vapour product”.

Introduced on 6th January, Senate Bill 231 would expand the definition of “smoking” in the Virginia Indoor Clean Air Act to include vapour products. Vape stores are excluded from the scope of the act.

 

 

Washington 

Term referring to ENDS products: vapor product

 

Carry-over legislation: taxation

House Bill 2211, which was reintroduced and retained in its present status on 11th January, would levy a tax on all vapour products equal to 60% of the taxable sales price.

 

Carry-over legislation: youth access

House Bill 1458, which was reintroduced and retained in its present status on 11th January, increases the legal age to purchase tobacco and vapour products from 18 to 21.

Senate Bill 5494, which is the same as House Bill 1458, was also reintroduced and retained in its present status on 11th January.

 

Carry-over legislation: sales, youth access, and product characteristics

Senate Bill 5573, which was reintroduced and retained in its present status on 11th January, would (1) make the act of giving or selling vapour products to a minor a gross misdemeanour; (2) require public schools to have a written policy prohibiting vapour products; (3) require retailers to post signs concerning the prohibition of vapour sales to minors; (4) prohibit e-cigs from being sold in a vending machine in any establishment open to minors; (5) ban vapour samples, and make any violation of that ban a misdemeanour offence; (6) require manufacturers to label vapour products with the nicotine content and a warning about the harmful effects of nicotine; (7) prohibit the sale of flavoured vapour products; and (8) make minors who attempt to purchase vapour products guilty of a class 3 civil infraction.

House Bill 1645, which is the same as Senate Bill 5573, was also reintroduced and retained in its present status on 11th January.

 

Carry-over legislation: product characteristics and advertising

Senate Bill 5477, which was reintroduced and retained in its present status on 11th January, would require (1) all vapour products to be sold in child-proof packaging; (2) manufacturers to label vapour products with warnings about the harmful effects of nicotine and to keep away from children; and (3) manufacturers (but not retailers) to include the same warnings in any advertisement.

 

– Carly Souther ECigIntelligence staff

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