I 

118TH CONGRESS 

1ST SESSION H. R. 901 

To require the Food and Drug Administration to prioritize enforcement of 

disposable electronic nicotine delivery system products. 

IN THE HOUSE OF REPRESENTATIVES 

FEBRUARY 9, 2023 

Mrs. CHERFILUS-MCCORMICK introduced the following bill; which was referred 

to the Committee on Energy and Commerce 

A BILL 

To require the Food and Drug Administration to prioritize 

enforcement of disposable electronic nicotine delivery system products. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Disposable ENDS 

5 Product Enforcement Act of 2023’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds the following: 

8 (1) In April 2020, the Food and Drug Adminis9 tration issued guidance entitled ‘‘Enforcement Prior10 ities for Electronic Nicotine Delivery System 


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1 (ENDS) and Other Deemed Products on the Market 

2 Without Premarket Authorization’’. 

3 (2) In such guidance, Food and Drug Adminis4 tration describes how the agency intends to prioritize 

5 enforcement against any flavored, cartridge-based 

6 electronic nicotine delivery system product (other 

7 than a tobacco- or menthol-flavored electronic nico8 tine delivery system product) marketed without au9 thorization from the Food and Drug Administration. 

10 (3) In defining the term ‘‘cartridge-based 

11 ENDS product,’’ the guidance cites ‘‘self-contained, 

12 disposable products’’ as not being with the scope of 

13 this prioritized category. 

14 (4) The guidance explains: ‘‘FDA is continu15 ously evaluating new information and adjusting its 

16 enforcement priorities in light of the best available 

17 data, and it will continue to do so with respect to 

18 these products. FDA will take appropriate action re19 garding tobacco products that are marketed without 

20 premarket authorization, including as warranted 

21 based on changed circumstances, new information, 

22 or to better address minors’ use of those products’’. 

23 (5) In November 2022, the Food and Drug Ad24 ministration and the Centers for Disease Control 

25 and Prevention released the findings from the 2022 


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1 National Youth Tobacco Survey. The data shows 

2 that self-contained disposable electronic nicotine de3 livery system products were the most common device 

4 type used by minors. 

5 SEC. 3. UPDATED ENFORCEMENT PRIORITIZATION. 

6 (a) GUIDANCE.—The Secretary of Health and 

7 Human Services, acting through the Commissioner of 

8 Food and Drugs (referred to in this Act as the ‘‘Sec9 retary’’), shall not later than 90 days after the date of 

10 the enactment of this Act, update the final guidance enti11 tled ‘‘Enforcement Priorities for Electronic Nicotine De12 livery System (ENDS) and Other Deemed Products on the 

13 Market Without Premarket Authorization’’ issued in April 

14 2020, to include a description of how the Secretary will 

15 also prioritize enforcement against disposable ENDS 

16 products, including such nicotine products not derived 

17 from tobacco. 

18 (b) ENFORCEMENT.—Nothing in this section shall be 

19 construed as preventing the Secretary from prioritizing 

20 enforcement against disposable ENDS products, including 

21 nicotine products not derived from tobacco, in advance of 

22 updating the guidance referred to in paragraph (1), par23 ticularly with respect to such products that are targeted 

24 to minors or whose marketing is likely to promote use of 

25 such products by minors. 


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1 (c) INCLUSION IN TOBACCO REGULATION ACTIVITIES

2 ANNUAL REPORT.—The Secretary shall include in each 

3 annual report required to be submitted pursuant to section 

4 112 of subtitle B of title I of division P of the Consolidated 

5 Appropriations Act, 2022 (Public Law 117–103), the total 

6 number of compliance and enforcement actions taken with 

7 respect to disposable ENDS products during the year cov8 ered by the report. 

9 (d) DISPOSABLE ENDS PRODUCT DEFINED.—In 

10 this Act, the term ‘‘disposable ENDS product’’ means a 

11 tobacco product (as defined by section 201(rr) of the Fed12 eral Food, Drug, and Cosmetic Act (21 U.S.C. 321(rr))) 

13 that consists of a single unit including the battery and 

14 the liquid, and the entire device is intended to be disposed 

15 of after the liquid has been depleted. 

Æ 


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