[Congressional Record Volume 168, Number 46 (Tuesday, March 15, 2022)]
[Senate]
[Pages S1161-S1162]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                              E-Cigarettes

  Mr. President, there is something else that is going on on the 
domestic front. Each of us kind of defines our career in Congress as 
what is important to us, and when I came to the House of 
Representatives, I had a little planning behind the decision to take 
after the tobacco companies.
  My family was touched by tobacco death, as so many families are. I 
lost my father when I was a sophomore in high school. I was 14 years 
old; he was 53. He died from lung cancer. Two packs of Camels a day did 
it to him.
  I decided in the House of Representatives I would start to take what 
action I could to stop the tobacco companies in their deadly march 
across America. So one of the things I did was to ban smoking on 
airplanes, put the law into effect, and it has changed dramatically not 
just air travel but life in America.

  I had no idea that that was a tipping point, and once we banned 
smoking on airplanes, people would say: Well, why didn't you include 
schools or office buildings or hospitals or veterans facilities or 
buses or trains? And the dominoes kept falling. Now it is peculiar, it 
is strange, should someone walk into a room and light up a cigarette. 
It just doesn't happen. So that much was done.
  But the tobacco companies didn't stop, even after they were proven to 
be liars under oath before the U.S. House of Representatives when they 
were asked whether or not tobacco caused cancer.
  My new cause, again, against tobacco companies relates to e-
cigarettes and vaping.
  It has been 6 months--6 months. That is how long past a court-ordered 
deadline the Food and Drug Administration is to finish its public 
health review of e-cigarettes--6 months. As an attorney, if my client 
were 6 months late in meeting a court order, there would be major 
consequences, but for the FDA, it appears to be business as usual.
  Mind you, this is not some bureaucratic squabble. The issue at stake 
is whether or not the Food and Drug Administration will do its job to 
prevent children in America from getting hooked on e-cigarettes that 
are being peddled by big tobacco companies in violation of the law.
  You see, the Tobacco Control Act, the law of the land, requires that 
tobacco products be reviewed by the FDA before they can even be sold. 
The law says tobacco companies must prove to the FDA that their product 
is ``appropriate for the protection of public health.'' They can't meet 
that standard. Everyone knows it. If they don't meet it, they are not 
supposed be sold in the United States, period. That is the law.
  But instead of doing its job, the FDA turned a blind eye for years at 
e-cigarettes and vaping--many funded by the largest cigarette 
corporations like R.J. Reynolds and Altria. Those companies flooded the 
market with flavored e-cigarettes meant to hook our kids. The result: 
Millions of children became addicted to e-cigarettes. Big Tobacco 
intentionally targeted children with trendy advertisements and fruit- 
or candy-flavored nicotine products.
  These actions and FDA's failure to regulate e-cigarettes were a 
flagrant violation of existing law, so in 2019, a Federal judge stepped 
in and called the Agency out for its abdication of responsibility. The 
judge found that the Food and Drug Administration ``decided not to 
enforce the pre-market review provisions at all.'' So the Federal court 
gave the FDA a deadline. Listen carefully. It required the FDA to 
complete its review of the legality of all e-cigarettes being sold in 
the United States by September 9, 2021.
  When that deadline arrived 6 months ago, FDA announced that it had 
denied millions of applications for e-cigarettes that had no business 
on the market. That was important and long overdue. However, a new 
trend emerged. Vaping companies, including many whose products had been 
denied by the FDA, were attempting to circumvent the law by reinventing 
their products.
  Many e-cigarette companies tried to use so-called synthetic nicotine. 
We know nicotine--it is the habit-forming drug that is included in 
tobacco cigarettes. So they decided that if they made nicotine not out 
of tobacco but out of other chemicals, they would escape the reach of 
law.
  The day after the FDA ordered Texas-based VaporSalon to remove its 
products from the market, the company announced:

       VaporSalon is switching to tobacco-free nicotine . . . the 
     main purpose of this is to be outside of FDA's regulations.

  They were very bold about it. They wanted to hook our kids with 
synthetic nicotine and were arguing the government couldn't stop them.
  The e-cigarette most popular with children is known as Puff Bar. It 
uses synthetic nicotine to escape the reach of the FDA. They peddle 
these addictive cigarettes to our kids in flavors not designed for any 
adults. Listen to the flavors: Blue Raz, Lemon Ice, Watermelon.
  FDA is asleep at the wheel. But Congress recognized this problem 
recently and did something about it. The fiscal year 2022 omnibus bill 
that passed last week contains a bipartisan provision that I worked on 
with Senators Collins and Murray. Our policy closes the synthetic 
nicotine loophole.
  When President Biden signs that law today, we are going to see this 
law go into effect and clarify the FDA as the authority to regulate 
synthetic nicotine products and to keep those e-cigarettes off the 
market. Congress is saying clearly that we will not allow predatory 
vaping companies to target kids for profit. Now, it is the FDA's duty 
to do the same.
  I recently voted for the new Director, Dr. Califf, and I said to him: 
I am going to watch you, and I am going to be on you like a hawk. You 
have a Federal legal responsibility to stop these e-cigarettes from 
being sold to our kids. Don't waste time.
  I hope he doesn't. I hope the FDA will use their new authority.
  JUUL and Puff Bar are two companies most responsible for fueling the 
youth vaping epidemic. They continue to be sold despite court-ordered 
deadlines and despite the fact they use these kid-friendly flavors and 
tactics.
  So why has the FDA not removed them? Why are more teens and even 
preteens still getting hooked on e-cigarettes? FDA has the authority to 
clear all unauthorized e-cigarettes from the market and force their 
sellers to prove that their products--it is their legal responsibility 
to prove their products are appropriate for the protection of public 
health.
  Good luck. They are not going to be able to do that, and we know it.

[[Page S1162]]

  Last week, I led a bipartisan letter with Senator Romney, Republican 
of Utah, and 13 other Senators saying to the FDA to do three things: 
finish the review of e-cigarettes immediately; reject the applications 
for e-cigarettes, especially kid-friendly flavors; and No. 3, clear the 
market of all unapproved e-cigarettes.
  Last month, when the Senate approved Dr. Califf, I made it clear that 
I wanted to treat this matter as an urgent requirement and to clear the 
backlog. Congress has now given him every tool he needs. Today marks 1 
month of his tenure as Commissioner. Will he keep his word to me and so 
many others to protect kids from a lifetime of addiction? It is time 
for FDA to do its job and protect America's kids from Big Tobacco and 
their candy-flavored, sickness-causing e-cigarettes.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Padilla). The Republican whip.