House Energy and Commerce Chair Rep. Frank Pallone, Jr. (D-NJ) and Rep. Donna Shalala (D-FL) recently introduced H.R. 2339, a comprehensive bill seeking to amend the Federal Food, Drug, and Cosmetic Act with respect to the sale and marketing of tobacco products. The legislation, currently titled the Reversing the Youth Tobacco Epidemic Act of 2019, is a broad bill that covers many of the legislative movements and trends seen in recent years concerning the sale and marketing of tobacco products. This bill reflects an attempt to combine the various issues into one comprehensive piece of legislation ostensibly intended to limit youth tobacco access.

Specifically, the bill seeks to prohibit all online sales of tobacco products, including deemed products, citing challenges with face-to-face identification and age verification for remote sales. The bill also bans all tobacco products with a characterizing flavor, including menthol (with a limited exception for characterizing flavors “to decrease smoking” – i.e., flavors in electronic nicotine delivery systems (ENDS) products that would meet FDA’s public health standard). The bill also sets a timeline of 12 months for FDA to finalize its graphic warning requirements for cigarettes (which we most recently reported on here) after this bill is passed.

Other provisions of the legislation include:

  • Raising the minimum age for purchasing tobacco products to 21 years and making it unlawful to market, advertise or promote any e-cigarette products to individuals under the age of 21;
  • Giving FDA authority to collect user fees for all tobacco products, including e-cigarettes, and increasing such fees;
  • Obligating FDA to issue a final rule on the regulation of products containing synthetic nicotine within 1 year after the date of the enactment of this Act; and
  • Requiring the Federal Trade Commission (FTC) to issue an annual report to Congress on the domestic sales, advertising and promotional activity of cigarette, cigar, smokeless tobacco and ENDS manufacturers.

Although many of these provisions reflect topics that have been recently considered or implemented at the local, state and federal levels, this bill reflects a more comprehensive approach to tobacco product regulation. The bill is supported by various public health groups, including the American Academy of Pediatrics, American Heart Association, and Campaign for Tobacco-Free Kids. If passed, we can expect the legislation to go through a round of legal challenge as it has the potential to significantly limit how businesses can market their products and substantially impact adult access to tobacco products.