Advocates of e-cigarettes got some help from the Trump administration last week in their effort to keep a major regulation from taking effect in August. But they still need some help from Congress.
The Trump administration last week moved to delay all regulatory deadlines facing e-cigarette makers. Chief among the deadlines is one requiring e-cigarette makers to submit an application by August with the Food and Drug Administration to get federal approval of their products. Even some products that are on store shelves would have to submit an application alongside any new product applications.
But e-cigarette groups are saying the move to delay the August deadline is only a temporary salve and that Congress is going to need to make any change permanent.
The delay is the latest sign of support from the Trump administration, which appointed Dr. Scott Gottlieb to lead the FDA. Gottlieb, an agency veteran and consultant, served on the board of an e-cigarette manufacturer.
Vaping allies also pointed to the dismissal of Surgeon General Vivek Murthy, an appointee of former President Barack Obama's who criticized e-cigarette use.
Proponents of more regulation say e-cigarettes entice younger people to smoke using different flavors that range from bubblegum to chocolate.
Advocates were able to get a major victory when the FDA implemented a regulation last year that banned sales to minors. A report from the Centers for Disease Control and Prevention showed that e-cigarette use among minors is rising rapidly, with more than 3 million middle and high school students using them within the past 30 days of being surveyed.
Activists who have been pushing for the FDA to implement the changes were livid with Trump's delay.
"All regulations by the FDA need to be supported by sound evidence, including justification of any further delays or changes," according to the American Cancer Society's Cancer Action Network, the group's lobbying arm. "Failing to do so could prevent us from saving lives, keeping kids from starting lifelong and often deadly addictions, and ending the scourge of tobacco on the American people."
While the e-cigarette industry cheered the delay, it will take congressional action to make the permanent changes they want.
Until the Trump administration moved to delay the new requirements, any e-cigarette product would have had to be reviewed and approved by the FDA to ensure it was safe as of Aug. 8. "If you don't have your application filed, then it is a felony to continue to sell your product," said Greg Conley, president of the American Vaping Association.
The FDA set a grandfather date of Feb. 15, 2007, which means that any product made before that date doesn't need to receive FDA approval. But e-cigarette makers say that date could destroy the growing vaping market because most products were made after that.
E-cigarette products that are already on store shelves would have to be taken down to get agency approval, advocates say. Because agency approval is an expensive proposition, some makers could just fold instead, Conley said.
Conley added that the regulation is already hurting business. ProVape, a device maker in Washington, said this year it was shutting down.
"Due to upcoming FDA regulations and restrictions, we have made the decision to cease production and close operations," the company said in February.
Conley said that certainty is needed for the market, as vaping shops have leases that are coming up for renewal and they don't know where things stand on the federal level.
Several lawmakers tried to create some certainty last week, but their bid to add a rider to a short-term government spending bill that would have changed the grandfather date fell short.
The rider from Reps. Tom Cole, R-Okla., and Sanford Bishop, D-Ga., sought to change the grandfather date from 2007 to the date the rule was enacted last year. The rider, which the lawmakers sought to include in prior spending bills, was stripped out of a deal to fund the government until September.
Cole told the Washington Examiner that he and Bishop could try again in September or it could be considered as a separate bill before then. He wasn't disappointed in the rider's not being included.
"There were no riders at all," he said of the spending deal. "You can't take it personally when they rejected 160 different riders."
Cole is confident that the issue has momentum on Capitol Hill. "A lot of people are finding out how many constituents they have that are involved either as a business or enjoy it individually," he said.
Cole added the White House recently contacted him on the e-cigarette issue.
"It is a very different attitude from what we had before, obviously," he said.