Merkley decries lack of action on e-cigarette rules

Merkley decries lack of action on e-cigarette rules

'We've been waiting a very long time' he says

WASHINGTON - On Tuesday on the Senate floor, Sen. Jeff Merkley, D-Ore., denounced the Obama administration’s ongoing inaction in finalizing the proposed tobacco "deeming rule," and called for the rule to be finalized as quickly as possible.

Finalizing the rule is essential to putting in place regulations for e-cigarettes and other new tobacco products, such as minimum age limits, limits on advertising, health warnings, and more.

The Food and Drug Administration released the proposed rule two years ago this week. In the intervening time, the rule has not yet been finalized, despite the fact that it is now nearly seven years after the passage of the law that required the FDA to complete the rules, the Family Smoking Prevention and Tobacco Control Act of 2009, the senator said.

“When the Family Smoking Prevention and Tobacco Control Act was signed into law, it was heralded as a major victory – giving the FDA real power to crack down on the marketing of tobacco products to our children,” Merkley said on the floor.

“After a year, no action,” he continued. “Two years, no action—that took us to 2011. Three years, no action. Four years, no action. Five years, no action. Six years, no action. Seven years, no action.

“Over the course of those seven years, a lot of young Americans can become addicted to nicotine products. In seven years, the industry had time to develop new, innovative products to entrap our youth. And they’ve utilized that time well.

“How much longer will this inaction continue while our children are addicted to products newly invented and aimed directly at them?”

The full transcript of Merkley’s remarks follows below.

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Madam President, I rise today to call attention to a dangerous complacency that threatens the health and the lives of our children.

And I rise today to urge our Administration to take long-overdue action to protect our children!

Two years ago this month, the Food and Drug Administration, the FDA, released a proposed tobacco deeming rule – a blueprint for a regulatory framework for e-cigarettes and other tobacco products.

The Administration officials believed and conveyed that the final rule would be out by the end of summer 2015. 

Well the summer of 2015 is now history and soon it will be the summer of 2016. And we wait.

We’ve been waiting a very long time.

And we are still waiting for some type of regulation.

In total, it’s been seven years since the Family Smoking Prevention and Tobacco Control Act was passed by the U.S. Senate and the U.S. House, and was signed by President Obama. This legislation gave the FDA the authority to regulate tobacco products.

This legislation was sponsored by Senator Ted Kennedy. It was passed in the final months of his life. It was a tribute to his long advocacy for the regulatory control of tobacco, a dangerous and destructive drug—widespread throughout America. The passage was part of his legacy.

But now, we are failing that legacy, and we are failing millions of our children.

When the Family Smoking Prevention and Tobacco Control Act was signed into law, it was heralded as a major victory – giving the FDA real power to crack down on the marketing of tobacco products to our children.

After a year, no action. Two years, no action—that took us to 2011. Three years, no action. Four years, no action. Five years, no action. Six years, no action. Seven years, no action.

Over the course of those seven years, a lot of young Americans can become addicted to nicotine products. In seven years, the industry had time to develop new, innovative products to entrap our youth. And they’ve utilized that time well.

How much longer will this inaction continue while our children are addicted to products newly invented and aimed directly at them?

Each passing month, thousands of children become addicted to these new products. Each passing month the nicotine addiction industry becomes more deeply entrenched and determined to prevent the regulation we authorized back in 2009.

It has been said while Nero fiddled, Rome burned. In this situation while the Administration has failed to act, millions of children have become addicted to nicotine with profound consequences for their health.

Once the rule is final, the FDA will be able to regulate new tobacco products in important ways, including minimum age standards; limits on advertising; childproof packaging; health warnings on the products; and requiring tobacco product manufacturers to register with the FDA and FDA approval of some novel products.

It’s time to get this done. Because lives are at stake!

We all are familiar with the cycle: tobacco use leads to tobacco addiction. Tobacco addiction leads to disease. The disease leads to suffering, and often to death.

In fact, tobacco use is the leading cause of preventable death in the United States. The leading cause! It imposes a terrible toll in health, lives and dollars, affect families, businesses and government.

So, the best way to improve the lives of Americans ten, twenty or thirty years in the future, or forty years down the line is to stop the process by which this industry is targeting our youth because here's what they know. They know that after the age 21, very few people become addicted to nicotine. It’s a product that people try in their youth and with repeated use become addicted to and then ensue normally years and years—that makes for a very good customer of the tobacco industry. A very good customer of the nicotine industry and very bad consequences for the health of our children—who become our young adults, who become our middle-aged adults.

According to a Surgeon General’s report released in March 2012, tobacco use among youth is a “pediatric epidemic.”

But the thing is, our children aren’t just starting to smoke because of happenstance. No, they're aggressively targeted by the tobacco industry.

Big Tobacco is working day and night to design products to appeal to kids. To get them hooked on this deadly habit—so they’ll become reliable tobacco consumers.

In fact, the industry calls them “replacement smokers.” The products we supplied before resulted in a whole lot of our customers dying. We need replacement smokers; we need replacement consumers. This clearly is a product with great harm associated with it. Cigars. Cigarillos. Cigarettes. Tobacco candy. Snus. And e-cigarettes. The list goes on and on.

These products cost often as little as 99 cents, and are sold in colorful or “cool” packaging. And nowhere is that more true in the bourgeoning e-cigarette industry.

This chart shows very readily the strategy of using candy flavors, fruit flavors targeted at kids. We have everything here from cherry, watermelon. The list continues with all kinds of…check this out—gummy bears. You have advertised e-cigarette flavors as gummy bears. You’re not targeting people over 21, you’re targeting our children. You’re targeting them with bubblegum flavor, and wild cherry flavor, and candy apple flavor. These flavors are not for adults. They mask the flavor of the product and make it more tempting, more exciting for our young people.

Madam President, I ask permission to use a prop

Thank you Madam President. This container is like these containers shown here on the poster. This is called J-Juice. They call it juice, they put juice in the title—as if to imply it is healthy! This is liquid nicotine targeted at our children with all these kinds of flavors.

Now this particular flavor was a response to the advocacy of myself and others to say this targeting of our children is not okay. So the industry decided to make a “Senator’s Choice” flavor.

JJuice calls this flavor “the greatest blend to date” – using “the purest, highest quality, liquid essence of guava, then combin[ing] it with their all-natural, American-made raw ingredients.”

It’s almost like a review of a fine wine. And again they created this specifically to protest the fact that Senators were standing up and saying that this targeting of children is not okay. It is immoral and it is wrong and we have a law in place to end it but the Administration must act or that law has no impact.

Well, what’s in this? The ingredients list does not have “essence of guava” on the ingredients lists. It has glycerin, and pripolene lycol, and nicotine and artificial flavorings. Which somehow doesn’t sound nearly as nice as the description on the website. Let’s see the impact of this targeting of our youth.

Unfortunately, Big Tobacco, the nicotine addiction industry—their strategies work. That’s why they’re continuing to employ them.

High school e-cigarette use tripled in just one year. From 2013, 4.5%, to 2014, 13.4% and when we have the numbers from 2015 I’m sure we’ll find that it is substantially higher because of this aggressive marketing campaign aimed at junior high and high school students.

Nearly 1 in 7 high school students has used an e-cigarette in the last 30 days. That represents 2 million of our teenagers nationwide. An updated CDC study released recently confirmed that youth tobacco use is continuing to grow.

Our children are not using e-cigarettes to quit smoking. They are using them to start smoking. So when the industry claims that all the e-cigarettes are about is improving the health of folks who currently use cigarettes, it is another tobacco industry big lie. Big Tobacco brings us another big lie. Children are using these products to start smoking, not to stop smoking.

And every day we don’t act, more of our children are at risk of a lifetime of tobacco and nicotine addiction.

So the choice is simple: Let’s end this irresponsible inaction.

Let’s stop enriching the multibillion-dollar tobacco industry by continuing to delay the regulations authorized back in 2009.

And let’s do the right thing for America’s children – let’s assist our children in them in living longer, healthier and happier lives by ending the targeting by Big Tobacco.