A House committee approved a bill Wednesday that would take a dramatic new direction on the regulation of nicotine-delivery vaping products and vape shops. The House Health Market Reform Subcommittee moved the bill ahead despite objections over the strategy to split them away from tobacco regulations.
PCB HMR 04 from Rep. Jackie Toledo, a Tampa Republican, would create an independent state regulatory structure for vaping products and vape shops so that they are fully regulated as required by new federal law but would not include them under the definition or regulation of tobacco products under Florida law.
The new bill takes a different tack than previous legislation and from the dominant vape shop regulatory bills in the Florida Senate that are pushing to put vaping products and vape shop regulation under the state’s tobacco structures. The Senate bill is more in line with federal law requiring national control over vaping, including increasing the minimum age for purchasing e-cigarette products to 21.
Toledo’s committee bill won applause Wednesday from a least one vape shops representative, who’ve been chaffing under all implications that what they sell is just another form of tobacco. They’ve been arguing, as Tallahassee dealer J.D. McCormick, representing the Florida Smoke Free Association, did Wednesday, that their products are tobacco cessation products, not tobacco.
Yet opposition arose Wednesday from the American Heart Association and the American Cancer Society, who argued that it is a mistake to deny that the vape products, the vast majority of which include nicotine derived from tobacco, are tobacco products. They should be defined and treated as such, those representatives argued.
It was not entirely clear Wednesday whether the strategy put forth in HMR 04 could pass muster with federal law and impending Food and Drug Administration regulations, which have not yet clarified how states should regulate nicotine-delivery vaping products.
Rep. Javier Fernández, a Democrat from Coral Gables, expressed concerns that the strategy could put Florida at odds with federal law and regulations, especially once the FDA grace period ends for states to come into compliance. Ultimately, he was the only committee member to vote against the bill, though he was not the only one to raise concerns.
Committee Chair Cary Pigman, the Republican from Sebring, repudiated the opponents. He argued that Toledo’s strategy is “genius” for creating what he called a “fail-safe” regulatory framework for vape shops outside of the controversy over whether their products should be considered tobacco or as a cure for tobacco.
Toledo emphasized the need to do something, and quickly. She argued the strategy would take a safe route to doing so. She began by expressing alarm that vaping has exploded in popularity, particularly among teenagers, with a wave of reports about major health risks, including deaths attributed to some vape products.
“Members, it’s no secret that our country is facing a unique vaping epidemic that has infiltrated our halls in high schools and in middle schools,” Toledo declared. “Between the years of 2011 and 2014 the number of high school students using vape has increased by 800%. In 2019 over 5 million high school students were current users of e-cigarette products. That’s almost a size of the population of Alabama. The crisis came to light when cases of vaping-related lung injuries known as EVALI began to occur. As of Jan. 14, 52% of the almost 3,000 EVALI cases occurred in people under the age of 24.”
The bill would establish regulatory oversight in the Florida Department of Business and Professional Regulation, and would require vaping retail permits. It would give the department authority to fine vape retailers for selling to underage customers; for vape manufacturers to be fined for selling products that harm someone; and establish compensatory damages up to $2 million for lawsuits.
“This is currently more than what is allowed in most cases and should help to deter bad behavior by vape manufacturers,” Toledo said.
Increasing to the minimum age for purchase would be handled in separate legislation. Details on regulation, notably creating enforcement protocols and money to support them, would have to be taken up next year, after Florida has a handle on the industry’s size and scope.
“This is just the first step,” Toledo said.
McCormick said his group supports the bill, would not oppose the increase of minimum age to 21, and would support additional regulation of vaping products.
“We support the entire list of proposals in HMR 4 that would here-after regulate vaping products with such framework and stringency as the regulation of tobacco products,” he said. “Of course, we strongly oppose historical attempts by others to artificially define vapor products as tobacco. … We ask that you remember that our primary focus is on tobacco harm reduction.”
The American Heart Association, the American Cancer Society, and the American Lung Association, which also put forth opposition Wednesday, do not see it that way.
Mark Landreth, representing the American Heart Association, noted that courts are finding that e-cigarettes are intended to “encourage nicotine use, rather than prevent or mitigate it.”
Fernandez said he was concerned about efforts to create parallel regulatory structures for tobacco and vaping, “that frankly have the same negative impacts on youth and children. And, frankly, we would be well-served to bring it within the current framework, and immediately take advantage of the resources that could be brought to bear for enforcement by DBPR.”
Pigman lashed out at the heart, lung, and cancer associations.
“I’m absolutely shocked that the American Cancer Society, the American Heart [Association] are not proponents of this bill. It disappoints me profoundly. I hope their constituents look into this,” Pigman said.