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House Wants to Treat Synthetic Nicotine Like Tobacco

by Robert Taney on January 10, 2022

The Clarifying Authority Over Nicotine Act 

The Clarifying Authority Over Nicotine Act (House Bill HR 6286) was introduced on December 14, 2021. It would make synthetic nicotine subject to the Tobacco Control Act of 2009 and force the FDA to regulate synthetic nicotine.

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

Nightshades, such as eggplants and tomatoes, also contain nicotine. These plants, “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 naturally occurring nicotine is only present in trace amounts. Tobacco leaves are 5 to 7 percent nicotine. Tomatoes and eggplant are not used commercially for nicotine manufacturing because they contain much less than this. Selective breeding or genetic engineering methods such as CRISPR could in theory elevate the nicotine level of tomatoes to eggplants to a commercially viable level. Under the new law, such plants would be considered tobacco.

 

House Wants to Treat Synthetic Nicotine as Tobacco

Tobacco-Free Kids petitioned the FDA to regulate synthetic and non-tobacco nicotine this fall. Despite being responsible for tobacco, the FDA has so far refrained from expanding their power to include synthetic nicotine.

The 2009 Tobacco Control Act could not be more 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).”

 

Never About Nicotine

Mad Vapes strives to provide vapers with the best vape flavors and hardware. We are not interested in selling our products to individuals who are not habitual nicotine users. Our hope is that our customers will pursue a lifestyle free of vaping and nicotine by taking advantage of the lower nicotine strength options we offer.

Nicotine is an addictive chemical and a large part of combustible tobacco’s appeal. Here is what former FDA chief Scott Gottlieb said 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 has stated repeatedly 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 as a scientist he does not deny this obvious reality or engage in the denialism and sophistry shown by anti-vaping lobbyists. 

 

What is Next for HR 6286

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 pass the narrowly Democratic house, its next stop would be the Senate. The advocates in the upper chamber would look much the same: the usual cast of anti-vaping Democratic Senators joining forces with a solitary Utah Republican who opposes adults consuming nicotine in any form.

 

2022 Elections

The anticipated GOP sweep in the 2022 midterms could break in one of two ways. The Democrats will want to push the bill through to appeal to parents. That the bill only denies adults access to the flavored vape juices they prefer and costs jobs in the independent vaping industry will probably be ignored.  

A regulation averse GOP may let the matter grind to a halt in the narrowly divided Senate. Unfortunately, vapers have not been organized or single issue voters. The pleas of adult vapers have been entirely ignored to date. But adult vapers represent an important voting bloc in the ten odd states that are still up for grabs.

The general population in the US has been misled about vape juice flavors and their importance. 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. Until this message is heard, it will be difficult to demonstrate our position on the moral high ground while simultaneously supporting a risky adult behavior.

It took cannabis decades to finally break through. Pinball was illegal in New York from 1940 to 1976. Once the misinformation stranglehold is broken, the truth about adult vaping preferences can finally be heard and dealt with in a rational manner.

 

Decline in Youth Vaping Ignored

An increase in teen vaping between 2016 and 2018 was cited by Representative Sherrill as the reason for the bill. Much has changed since 2018. Incredibly restrictive new regulations on vaping have passed. The rate of underage use has plummeted. In a more ominous development, cigarette sales are up for the first time in 20 years according to the FTC.

Sherril claims HR 6286 closes 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 from 5.4 million to 2 million in 2021 according to the 2021 Youth Tobacco Survey. And this 2 million number was measured before the most restrictive laws to date, the USPS Vape Mail Ban and Adult Signature on Delivery, truly took hold.

 

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.

 

How Big Tobacco Benefits

In an interview with Vox former FDA chief Scott Gottlieb said, “The dramatic spike of youth [vaping] — that was driven in part at the very least if not largely by Juul.” Since this is the case, why are the closed vape systems like Juul, MyBlu and Vuse the beneficiaries of a law that closes the synthetic nicotine “loophole”. That these closed products are manufactured by Big Tobacco, their subsidiaries and partners is no coincidence. Big Tobacco is simply much more effective at lobbying and stands to benefit from vape flavor bans.

Big Tobacco and their closed vaping devices are being handed a monopoly with the PACT Act, USPS Mail Ban, adult signature on delivery, and PMTAs. These are the devices that minors are most likely to use. 

Every piece of vaping legislation but Tobacco 21 helps strengthen Big Tobacco’s stranglehold on the vape market and hurts independent vaping companies. Tobacco 21 was also the most effective piece of legislation, as the Youth Tobacco Survey found that most minors were obtaining their vaping supplies from peers under the age of 21.

Tobacco flavored prefilled vape pods also have the advantage of being sold direct to consumer. Their sales are boosted by the USPS shipping ban. But even with increased taxes and delivery times, 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 30ml of salt nic vape juice. Those 43 Juul Pods cost about $20 per 4 pack. Landed, a salt nic bottle is going to run one-tenth that amount. Even if you live in an area with a flavor ban, it pays to use a refillable device. Even if you threw away your refillable vape pod after each bottle, it would still be cheaper to switch to refillable vapes. 

 

The Politics of Vaping and Vitamins?

When the federal government decided the supplement industry required more oversight, GOP Senator Orrin Hatch and Democratic Tom Harkin managed to block oversight that would have changed the face of the industry. 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. He has spent hundreds of millions to deny adult vapers access to the products they prefer.

While surely not his goal, he has managed to immeasurably strengthen the position of Big Tobacco in the process.

Vaping is in a tough position. Despite being associated with an addictive chemical, there actually is a stronger empirical case for vapes than vitamin supplements. In a gold standard, peer reviewed study published in the high impact New England Journal of Medicine, vaping demolished nicotine replacement therapy. With only a few exceptions, you would have to look long and hard to find a study of similar stature that supports the use of vitamin supplements.

 

UK Model More Humane

Remove the profit motive from health care and lobbyist money from the equation and the outcome might be exactly the opposite. That is the case in the UK, where their National Health Service (NHS) has discarded herbal medicine, homeopathy, and chiropractic care as ineffectual. At the same time they promoting vaping, including the website Using E-Cigarettes to Stop Smoking.

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 UK will soon be offering prescription vapes. Vaping and smoking are habits found most frequently among the marginalized and those with less access to services. Paying for vulnerable citizens of the UK to switch from combustible cigarettes to vaping is simply a humane public policy. Funneling these same marginalized groups from electronic nicotine delivery systems (ENDs) back onto combustible cigarettes through an ever expanding list of restrictions is inhumane in comparison.  

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