[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 2519 Introduced in Senate (IS)]
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116th CONGRESS
1st Session
S. 2519
To protect the public health by prohibiting non-tobacco e-cigarette
flavors and ensuring electronic nicotine delivery systems are tamper-
proof.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
September 19, 2019
Mr. Romney (for himself and Mr. Merkley) introduced the following bill;
which was read twice and referred to the Committee on Finance
_______________________________________________________________________
A BILL
To protect the public health by prohibiting non-tobacco e-cigarette
flavors and ensuring electronic nicotine delivery systems are tamper-
proof.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Ending New Nicotine Dependencies Act
of 2019'' or the ``ENND Act''.
SEC. 2. FINDINGS.
Congress finds as follows:
(1) As of September 11, 2019, the Centers for Disease
Control and Prevention and the Food and Drug Administration
reported 380 confirmed and probable cases of severe pulmonary
disease cases associated with the widespread use of electronic
cigarettes (referred to in this section as ``e-cigarettes'').
(2) As of September 17, 2019, States have reported as many
as 7 deaths nationwide associated with the use of e-cigarettes.
(3) The American Medical Association has stated that e-
cigarette-related lung illnesses ``reaffirm[s] our belief that
the use of e-cigarettes and vaping is an urgent public health
epidemic that must be addressed''.
(4) The Surgeon General has warned that the proliferation
of e-cigarettes is ``cause for great concern'', and that the
use of e-cigarettes has ``become an epidemic among our nation's
young people''.
(5) Since 2014, e-cigarettes have been the most commonly
used tobacco product among youth in the United States.
(6) According to the Food and Drug Administration, ``youth
consistently report product flavorings as a leading reason for
using tobacco products'' and ``flavors may disguise the taste
of tobacco''.
(7) In 2019, more than 1 in every 4 high school students
reported using e-cigarettes in the past 30 days.
(8) On September 9, 2019, the Food and Drug Administration
sent a warning letter to one of the largest e-cigarette
companies for violating Federal regulations and utilizing
illegal marketing tactics.
(9) E-cigarettes are not currently approved by the Food and
Drug Administration as a smoking cessation aid.
(10) More research is needed to evaluate the safety of e-
cigarettes, including the risks associated with tampering with
and altering e-cigarettes and the health implications of
heating aerosolized tobacco products.
SEC. 3. RESTRICTIONS ON FLAVORS IN TOBACCO PRODUCTS AND ON DEVICE
DESIGN.
(a) In General.--Section 907(a) of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 387g(a)) is amended--
(1) in paragraph (1), by adding at the end the following:
``(C) Special rule for electronic nicotine delivery
systems.--Beginning 90 days after the date of enactment
of the ENND Act, an electronic nicotine delivery system
or any of its components or parts (including e-liquid)
shall not contain, as a constituent (including a smoke
constituent) or additive, an artificial or natural
flavor (other than tobacco) or an herb or spice,
including strawberry, grape, orange, clove, cinnamon,
pineapple, vanilla, coconut, licorice, cocoa,
chocolate, cherry, coffee, menthol, or mint that is a
characterizing flavor of the electronic nicotine
delivery system or e-liquid. Nothing in this
subparagraph shall be construed to limit the
Secretary's authority to take action under this section
or other sections of this Act applicable to any
artificial or natural flavor, herb, or spice not
specified in this subparagraph.''; and
(2) by adding at the end the following:
``(7) Electronic nicotine delivery system standards.--Not
later than 1 year after the date of enactment of the ENND Act,
the Secretary shall promulgate regulations setting forth
standards on the permissible design of electronic nicotine
delivery systems, and issue guidance for manufacturers to
implement such standards. Such standards, at a minimum, shall--
``(A) prohibit refillable components or parts;
``(B) prohibit any electronic nicotine delivery
system designed to look like combustible cigarettes or
commonplace, nonmedical devices, such as pens or USB
flash drives; and
``(C) require each electronic nicotine delivery
system and its components and parts to be tamper-
proof.''.
(b) Definitions.--
(1) In general.--Section 900 of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 387) is amended--
(A) by redesignating paragraphs (8) through (22) as
paragraphs (10) through (24); and
(B) by inserting after paragraph (7) the following:
``(8) Electronic nicotine delivery system.--
``(A) In general.--The term `electronic nicotine
delivery system'--
``(i) means noncombustible tobacco
products, including vapes, vaporizers, vape
pens, hookah pens, electronic cigarettes (also
known as `e-cigarettes' or `e-cigs'), and e-
pipes that deliver an aerosolized e-liquid that
may contain nicotine, as well as varying
compositions of flavorings, propylene glycol,
vegetable glycerin, and other ingredients; and
``(ii) includes components and parts, such
as e-liquids, tanks, cartridges, pods, wicks,
and atomizers.
``(B) Components and parts.--The term `components
and parts', with respect to an electronic nicotine
delivery system, means the objects intended or
reasonably expected to be used with, or for, the human
consumption of a tobacco product that are not
accessories.
``(9) E-liquid.--The term `e-liquid' means liquid nicotine,
nicotine containing liquids (including liquid nicotine combined
with colorings, flavorings, or other ingredients), and liquids
that do not contain nicotine or other material made or derived
from tobacco, but that are intended or reasonably expected to
be used with or for the human consumption of a tobacco
product.''.
(2) Conforming amendment.--Section 9(1) of the
Comprehensive Smokeless Tobacco Health Education Act of 1986
(15 U.S.C. 4408(1)) is amended by striking ``section 900(18)''
and inserting ``section 900(20)''.
SEC. 4. MONITORING OF PUBLIC HEALTH RISKS OF TOBACCO USE.
Not later than 1 year after the date of enactment of this Act and
annually thereafter, the Secretary of Health and Human Services, in
consultation with the Director of the National Institutes of Health,
the Commissioner of Food and Drugs, the Director of the Centers for
Disease Control and Prevention, and other heads of appropriate
agencies, as the Secretary of Health and Human Services determines
appropriate, shall submit to the Committee on Health, Education, Labor,
and Pensions and the Committee on Appropriations of the Senate and the
Committee on Energy and Commerce and the Committee on Appropriations of
the House of Representatives, and publicly post on an internet website,
a report on the public health risks of tobacco use that includes--
(1) the public health implications of the use of tobacco
products, with a focus on electronic nicotine delivery systems
and other alternative tobacco products;
(2) emerging trends in tobacco use, including the use of
tobacco flavors and new tobacco products;
(3) updates on the public health awareness campaign
authorized by section 6; and
(4) recommendations for Congress.
SEC. 5. APPLICATION OF TOBACCO EXCISE TAX TO ELECTRONIC NICOTINE
DELIVERY SYSTEMS.
(a) Imposition, Rate, and Attachment of Tax.--Section 5701 of the
Internal Revenue Code of 1986 is amended--
(1) by redesignating subsection (h) as subsection (i); and
(2) by inserting after subsection (g) the following new
subsection:
``(h) Electronic Nicotine Delivery.--
``(1) Electronic nicotine delivery systems.--
``(A) In general.--On electronic nicotine delivery
systems (as defined in section 900(8) of the Federal
Food, Drug, and Cosmetic Act (21 U.S.C. 387(8))),
manufactured in or imported into the United States,
there shall be imposed a tax equal to $1.01 per
electronic nicotine delivery system.
``(B) Exception.--This paragraph shall not apply to
any single-use electronic nicotine delivery system.
``(2) E-liquid.--On e-liquids (as defined in section 900(9)
of such Act) or single-use electronic nicotine delivery
systems, manufactured in or imported into the United States,
there shall be imposed a tax equal to--
``(A) in the case of a product which contains less
than 5 percent nicotine by volume, $1.01, and
``(B) in the case of the product which contains a
percentage of nicotine by volume which is equal to or
greater than 5 percent, an amount equal to the sum of--
``(i) $1.01, plus,
``(ii) for each percentage point of
nicotine by volume contained in such product
which is in excess of 5 percent, 20.2 cents
(and a proportionate amount at the like rate on
any such percentage which is not a whole
number).''.
(b) Definitions.--Section 5702 of the Internal Revenue Code of 1986
is amended--
(1) in subsection (c), by striking ``and roll-your-own
tobacco'' and inserting ``roll-your-own tobacco, electronic
nicotine delivery systems, and e-liquids''; and
(2) in subsection (d), by striking ``or roll-your-own
tobacco'' each place it appears and inserting ``roll-your-own
tobacco, electronic nicotine delivery systems, and e-liquids''.
(c) Effective Date.--The amendments made by this section shall
apply to articles removed after the date which is 90 days after the
date of enactment of this Act.
SEC. 6. PUBLIC AWARENESS CAMPAIGN.
(a) In General.--The Secretary of Health and Human Services
(referred to in this section as the ``Secretary'') shall conduct a
public awareness campaign to educate the public about the public health
implications of using electronic nicotine delivery systems (as defined
in section 900 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C.
387), as amended by section 3).
(b) Funding.--To carry out subsection (a), for each of fiscal years
2021 through 2024, there shall be transferred to the Secretary, from
the General Fund of the Treasury, the lesser of--
(1) the amount equal to the amount collected under 5701(h)
of the Internal Revenue Code of 1986 during the previous fiscal
year; or
(2) $115,000,000.
SEC. 7. IMPLEMENTATION OF EXCISE TAX.
(a) Transitional Rule.--Any person who--
(1) on the date of the enactment of this Act, is engaged in
business as a manufacturer of electronic nicotine delivery
systems or e-liquids; and
(2) before the applicable date, submits an application
under subchapter B of chapter 52 of the Internal Revenue Code
of 1986 to engage in such business,
may, notwithstanding such subchapter B, continue to engage in such
business pending final action on such application. Pending such final
action, all provisions of chapter 52 of such Code shall apply to such
applicant in the same manner and to the same extent as if such
applicant were a holder of a permit to manufacture electronic nicotine
delivery systems or e-liquids under such chapter 52.
(b) Floor Stocks Taxes.--
(1) Imposition of tax.--On electronic nicotine delivery
systems or e-liquids manufactured in or imported into the
United States which are removed before the applicable date and
held on such date for sale by any person, there is hereby
imposed a tax in an amount equal to the tax which would be
imposed under section 5701 of the Internal Revenue Code of 1986
on the article if the article had been removed on such
applicable date.
(2) Liability for tax and method of payment.--
(A) Liability for tax.--A person holding electronic
nicotine delivery systems or e-liquids on the
applicable date to which any tax imposed by paragraph
(1) applies shall be liable for such tax.
(B) Method of payment.--The tax imposed by
paragraph (1) shall be paid in such manner as the
Secretary shall prescribe by regulations.
(C) Time for payment.--The tax imposed by paragraph
(1) shall be paid on or before the date that is 120
days after the applicable date.
(3) Articles in foreign trade zones.--Notwithstanding the
Act of June 18, 1934 (commonly known as the Foreign Trade Zone
Act, 48 Stat. 998, 19 U.S.C. 81a et seq.), or any other
provision of law, any article which is located in a foreign
trade zone on any tax increase date shall be subject to the tax
imposed by paragraph (1) if--
(A) internal revenue taxes have been determined, or
customs duties liquidated, with respect to such article
before such date pursuant to a request made under the
1st proviso of section 3(a) of such Act; or
(B) such article is held on such date under the
supervision of an officer of the United States Customs
and Border Protection of the Department of Homeland
Security pursuant to the 2d proviso of such section
3(a).
(4) Controlled groups.--Rules similar to the rules of
section 5061(e)(3) of the Internal Revenue Code of 1986 shall
apply for purposes of this subsection.
(5) Other laws applicable.--All provisions of law,
including penalties, applicable with respect to the taxes
imposed by section 5701 of the Internal Revenue Code of 1986
shall, insofar as applicable and not inconsistent with the
provisions of this subsection, apply to the floor stocks taxes
imposed by paragraph (1), to the same extent as if such taxes
were imposed by such section 5701. The Secretary may treat any
person who bore the ultimate burden of the tax imposed by
paragraph (1) as the person to whom a credit or refund under
such provisions may be allowed or made.
(c) Definitions.--For purposes of this section--
(1) In general.--Any term used in this section which is
also used in section 5701 or 5702 of the Internal Revenue Code
of 1986 shall have the same meaning as such term has in such
section.
(2) Applicable date.--The term ``applicable date'' means
the day after the date which is 90 days after the date of
enactment of this Act.
(3) Secretary.--The term ``Secretary'' means the Secretary
of the Treasury or the Secretary's delegate.
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