[Congressional Record Volume 170, Number 119 (Tuesday, July 23, 2024)]
[Senate]
[Pages S5220-S5221]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

  SA 2942. Mr. KAINE submitted an amendment intended to be proposed by 
him to the bill S. 4638, to authorize appropriations for fiscal year 
2025 for military activities of the Department of Defense, for military 
construction, and for defense activities of the Department of Energy, 
to prescribe military personnel strengths for such fiscal year, and for 
other purposes; which was ordered to lie on the table; as follows:

       At the appropriate place in title VI, insert the following:

     SEC. 6__. COMBATTING ILLICIT TOBACCO PRODUCTS.

       (a) In General.--Beginning not later than 120 days after 
     the date of the enactment of this Act, no exchange or 
     commissary store operated by or for a military resale entity 
     shall offer for sale any ENDS product or oral nicotine 
     product unless the manufacturer of such product executes and 
     delivers to the appropriate officer for each military resale 
     entity a certification form for each ENDS product or oral 
     nicotine product offered for retail sale at an exchange or 
     commissary store that attests under penalty of perjury the 
     following:
       (1) The manufacturer has received a marketing granted order 
     for such product under section 910 of the Federal Food, Drug, 
     and Cosmetic Act (21 U.S.C. 387j).
       (2) The manufacturer submitted a timely filed premarket 
     tobacco product application for such product, and the 
     application either remains under review by the Secretary or 
     has received a denial order that has been and remains stayed 
     by the Secretary or court order, rescinded by the Secretary, 
     or vacated by a court.
       (b) Failure to Submit Certification.--A manufacturer shall 
     submit the certification forms required in subsection (a) on 
     an annual basis. Failure to submit such forms to a military 
     resale entity as required under the preceding sentence shall 
     result in the removal of the relevant ENDS product or oral 
     nicotine product from sale at any exchange or commissary 
     store operated by or for such military resale entity.
       (c) Certification Contents.--
       (1) In general.--A certification form required under 
     subsection (a) shall separately list each brand name, product 
     name, category (such as e-liquid, power unit, device, e-
     liquid cartridge, e-liquid pod, or disposable), and flavor 
     for each product that is sold offered for sale by the 
     manufacturer submitting such form.
       (2) Other items.--A manufacturer shall, when submitting a 
     certification under subsection (a), include in that 
     submission--
       (A) a copy of the publicly available marketing order 
     granted under section 910 of the Federal Food, Drug, and 
     Cosmetic Act (21 U.S.C. 387j), as redacted by the Secretary 
     and made available on the agency website;
       (B) a copy of the acceptance letter issued under such 
     section for a timely filed premarket tobacco product 
     application; or
       (C) a document issued by the Secretary or by a court 
     confirming that the premarket tobacco product application has 
     received a denial order that has been and remains stayed by 
     the Secretary or court order, rescinded by the Secretary, or 
     vacated by a court.
       (d) Development of Forms and Publication.--

[[Page S5221]]

       (1) In general.--Not later than 60 days after the date of 
     the enactment of this Act, each military resale entity 
     shall--
       (A) develop and make public the certification form such 
     entity will require a manfacturer to submit to meet the 
     requirement under subsection (a); and
       (B) provide instructions on how such certification form 
     shall be submitted to such entity.
       (2) Submission in case of failure to publish form.--If a 
     military resale entity fails to prepare and make public the 
     certification form required by subsection (a), a manufacturer 
     may submit information necessary to prove compliance with the 
     requirements of this section.
       (e) Changes to Certification Form.--A manufacturer that 
     submits a certification form under subsection (a) shall 
     notify each military resale entity to which such 
     certification was submitted not later than 30 days after 
     making any material change to the certification form, 
     including--
       (1) the issuance or denial of a marketing authorization or 
     other order by the Secretary pursuant to section 910 of the 
     Federal Food, Drug, and Cosmetic Act (21 U.S.C. 387j); or
       (2) any other order or action by the Secretary or any court 
     that affects the ability of the ENDS product or oral nicotine 
     product to be introduced or delivered into interstate 
     commerce for commercial distribution in the United States.
       (f) Directory.--
       (1) In general.--Not later than 180 days after the date of 
     the enactment of this Act, each military resale entity shall 
     maintain and make publicly available on its official website 
     a directory that lists all ENDS product and oral nicotine 
     product manufacturers and all product brand names, categories 
     (such as e-liquid, e-liquid cartridge, e-liquid pod, or 
     disposable), product names, and flavors for which 
     certification forms have been submitted and approved by the 
     military resale entity.
       (2) Updates.--Each military resale entity shall--
       (A) update the directory under paragraph (1) at least 
     monthly to ensure accuracy; and
       (B) establish a process to provide each exchange or 
     commissary store notice of the initial publication of the 
     directory and changes made to the directory in the preceding 
     month.
       (3) Exclusions and removals.--An ENDS product or oral 
     nicotine product shall not be included or retained in a 
     directory of a military resale entity if the military resale 
     entity determines that any of the following apply:
       (A) The manufacturer failed to provide a complete and 
     accurate certification as required by this section.
       (B) The manufacturer submitted a certification that does 
     not comply with the requirements of this section.
       (C) The information provided by the manufacturer in its 
     certification contains false information, material 
     misrepresentations, or omissions.
       (4) Notice required.--In the case of a removal of a product 
     from a directory under paragraph (3), the relevant military 
     resale entity shall provide to the manufacturer involved 
     notice and at least 30 days to cure deficiencies before 
     removing the manufacturer or its products from the directory.
       (5) Effect of removal.--The ENDS product or oral nicotine 
     product of a manufacturer identified in a notice of removal 
     under paragraph (4) are, beginning on the date that is 30 
     days after such removal, subject to seizure, forfeiture, and 
     destruction, and may not be purchased or sold for retail sale 
     at any exchange or commissary store operated by or for a 
     military resale entity.
       (g) Definitons.--In this section:
       (1) ENDS product.--The term ``ENDS product''--
       (A) means any non-combustible product that employs a 
     heating element, power source, electronic circuit, or other 
     electronic, chemical, or mechanical means, regardless of 
     shape or size, to produce vapor from nicotine in a solution;
       (B) includes a consumable nicotine liquid solution suitable 
     for use in such product, whether sold with the product or 
     separately; and
       (C) does not include any product regulated as a drug or 
     device under chapter V of the Federal Food, Drug, and 
     Cosmetic Act (21 U.S.C. 351 et seq.).
       (2) Military resale entity.--The term ``military resale 
     entity'' means--
       (A) the Defense Commissary Agency;
       (B) the Army and Air Force Exchange Service;
       (C) the Navy Exchange Service Command; and
       (D) the Marine Corps Exchange.
       (3) Oral nicotine product.--The term ``oral nicotine 
     product'' means--
       (A) means any non-combustible product that contains 
     nicotine that is intended to be placed in the oral cavity; 
     and
       (B) does not include--
       (i) any ENDS product;
       (ii) smokeless tobacco (as defined in section 900 of the 
     Federal Food, Drug, and Cosmetic Act (21 U.S.C. 387)); or
       (iii) any product regulated as a drug or device under 
     chapter V of the Federal Food, Drug, and Cosmetic Act (21 
     U.S.C. 351 et seq.).
       (4) Secretary.--The term ``Secretary'' means the Secretary 
     of Health and Human Services, acting through the Commissioner 
     of Food and Drugs.
       (5) Timely filed premarket tobacco product application.--
     The term ``timely filed premarket tobacco product 
     application'' means an application that was submitted under 
     section 910 of the Federal Food, Drug, and Cosmetic Act (21 
     U.S.C. 387j) on or before September 9, 2020, and accepted for 
     filing with respect to an ENDS product or oral nicotine 
     product containing nicotine marketed in the United States as 
     of August 8, 2016.
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