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 sys-
tem products. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Disposable ENDS 
Product Enforcement Act of 2023’’. 
SEC. 2. FINDINGS. 
Congress finds the following: 
(1) In April 2020, the Food and Drug Adminis-
tration issued guidance entitled ‘‘Enforcement Prior-
ities for Electronic Nicotine Delivery System 
VerDate Sep 11 2014 
02:30 Mar 04, 2023
Jkt 039200
PO 00000
Frm 00001
Fmt 6652
Sfmt 6201
E:\BILLS\H901.IH
H901
kjohnson on DSK79L0C42PROD with BILLS
(ENDS) and Other Deemed Products on the Market 
Without Premarket Authorization’’. 
(2) In such guidance, Food and Drug Adminis-
tration describes how the agency intends to prioritize 
enforcement against any flavored, cartridge-based 
electronic nicotine delivery system product (other 
than a tobacco- or menthol-flavored electronic nico-
tine delivery system product) marketed without au-
thorization from the Food and Drug Administration. 
(3) In defining the term ‘‘cartridge-based 
ENDS product,’’ the guidance cites ‘‘self-contained, 
disposable products’’ as not being with the scope of 
this prioritized category. 
(4) The guidance explains: ‘‘FDA is continu-
ously evaluating new information and adjusting its 
enforcement priorities in light of the best available 
data, and it will continue to do so with respect to 
these products. FDA will take appropriate action re-
garding tobacco products that are marketed without 
premarket authorization, including as warranted 
based on changed circumstances, new information, 
or to better address minors’ use of those products’’. 
(5) In November 2022, the Food and Drug Ad-
ministration and the Centers for Disease Control 
and Prevention released the findings from the 2022 
VerDate Sep 11 2014 
02:30 Mar 04, 2023
Jkt 039200
PO 00000
Frm 00002
Fmt 6652
Sfmt 6201
E:\BILLS\H901.IH
H901
kjohnson on DSK79L0C42PROD with BILLS
National Youth Tobacco Survey. The data shows 
that self-contained disposable electronic nicotine de-
livery system products were the most common device 
type used by minors. 
SEC. 3. UPDATED ENFORCEMENT PRIORITIZATION. 
(a) GUIDANCE.—The Secretary of Health and 
Human Services, acting through the Commissioner of 
Food and Drugs (referred to in this Act as the ‘‘Sec-
retary’’), shall not later than 90 days after the date of 
the enactment of this Act, update the final guidance enti-
tled ‘‘Enforcement Priorities for Electronic Nicotine De-
livery System (ENDS) and Other Deemed Products on the 
Market Without Premarket Authorization’’ issued in April 
2020, to include a description of how the Secretary will 
also prioritize enforcement against disposable ENDS 
products, including such nicotine products not derived 
from tobacco. 
(b) ENFORCEMENT.—Nothing in this section shall be 
construed as preventing the Secretary from prioritizing 
enforcement against disposable ENDS products, including 
nicotine products not derived from tobacco, in advance of 
updating the guidance referred to in paragraph (1), par-
ticularly with respect to such products that are targeted 
to minors or whose marketing is likely to promote use of 
such products by minors. 
VerDate Sep 11 2014 
02:30 Mar 04, 2023
Jkt 039200
PO 00000
Frm 00003
Fmt 6652
Sfmt 6201
E:\BILLS\H901.IH
H901
kjohnson on DSK79L0C42PROD with BILLS
(c) INCLUSION IN TOBACCO REGULATION ACTIVITIES 
ANNUAL REPORT.—The Secretary shall include in each 
annual report required to be submitted pursuant to section 
112 of subtitle B of title I of division P of the Consolidated 
Appropriations Act, 2022 (Public Law 117–103), the total 
number of compliance and enforcement actions taken with 
respect to disposable ENDS products during the year cov-
ered by the report. 
(d) DISPOSABLE ENDS PRODUCT DEFINED.—In 
this Act, the term ‘‘disposable ENDS product’’ means a 
tobacco product (as defined by section 201(rr) of the Fed-
eral Food, Drug, and Cosmetic Act (21 U.S.C. 321(rr))) 
that consists of a single unit including the battery and 
the liquid, and the entire device is intended to be disposed 
of after the liquid has been depleted. 
Æ 
VerDate Sep 11 2014 
02:30 Mar 04, 2023
Jkt 039200
PO 00000
Frm 00004
Fmt 6652
Sfmt 6301
E:\BILLS\H901.IH
H901
kjohnson on DSK79L0C42PROD with BILLS