Title: ENND Act
Policy area: Health

Summary:
Ending New Nicotine Dependencies Act of 2019 or the ENND Act
This bill revises requirements for electronic nicotine delivery systems (e.g., e-cigarettes, e-hookah, and vape pens).
Specifically, the bill

[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 2519 Introduced in Senate (IS)]

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116th CONGRESS
  1st Session
                                S. 2519

  To protect the public health by prohibiting non-tobacco e-cigarette 
 flavors and ensuring electronic nicotine delivery systems are tamper-
                                 proof.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           September 19, 2019

Mr. Romney (for himself and Mr. Merkley) introduced the following bill; 
     which was read twice and referred to the Committee on Finance

_______________________________________________________________________

                                 A BILL


 
  To protect the public health by prohibiting non-tobacco e-cigarette 
 flavors and ensuring electronic nicotine delivery systems are tamper-
                                 proof.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Ending New Nicotine Dependencies Act 
of 2019'' or the ``ENND Act''.

SEC. 2. FINDINGS.

    Congress finds as follows:
            (1) As of September 11, 2019, the Centers for Disease 
        Control and Prevention and the Food and Drug Administration 
        reported 380 confirmed and probable cases of severe pulmonary 
        disease cases associated with the widespread use of electronic 
        cigarettes (referred to in this section as ``e-cigarettes'').
            (2) As of September 17, 2019, States have reported as many 
        as 7 deaths nationwide associated with the use of e-cigarettes.
            (3) The American Medical Association has stated that e-
        cigarette-related lung illnesses ``reaffirm[s] our belief that 
        the use of e-cigarettes and vaping is an urgent public health 
        epidemic that must be addressed''.
            (4) The Surgeon General has warned that the proliferation 
        of e-cigarettes is ``cause for great concern'', and that the 
        use of e-cigarettes has ``become an epidemic among our nation's 
        young people''.
            (5) Since 2014, e-cigarettes have been the most commonly 
        used tobacco product among youth in the United States.
            (6) According to the Food and Drug Administration, ``youth 
        consistently report product flavorings as a leading reason for 
        using tobacco products'' and ``flavors may disguise the taste 
        of tobacco''.
            (7) In 2019, more than 1 in every 4 high school students 
        reported using e-cigarettes in the past 30 days.
            (8) On September 9, 2019, the Food and Drug Administration 
        sent a warning letter to one of the largest e-cigarette 
        companies for violating Federal regulations and utilizing 
        illegal marketing tactics.
            (9) E-cigarettes are not currently approved by the Food and 
        Drug Administration as a smoking cessation aid.
            (10) More research is needed to evaluate the safety of e-
        cigarettes, including the risks associated with tampering with 
        and altering e-cigarettes and the health implications of 
        heating aerosolized tobacco products.

SEC. 3. RESTRICTIONS ON FLAVORS IN TOBACCO PRODUCTS AND ON DEVICE 
              DESIGN.

    (a) In General.--Section 907(a) of the Federal Food, Drug, and 
Cosmetic Act (21 U.S.C. 387g(a)) is amended--
            (1) in paragraph (1), by adding at the end the following:
                    ``(C) Special rule for electronic nicotine delivery 
                systems.--Beginning 90 days after the date of enactment 
                of the ENND Act, an electronic nicotine delivery system 
                or any of its components or parts (including e-liquid) 
                shall not contain, as a constituent (including a smoke 
                constituent) or additive, an artificial or natural 
                flavor (other than tobacco) or an herb or spice, 
                including strawberry, grape, orange, clove, cinnamon, 
                pineapple, vanilla, coconut, licorice, cocoa, 
                chocolate, cherry, coffee, menthol, or mint that is a 
                characterizing flavor of the electronic nicotine 
                delivery system or e-liquid. Nothing in this 
                subparagraph shall be construed to limit the 
                Secretary's authority to take action under this section 
                or other sections of this Act applicable to any 
                artificial or natural flavor, herb, or spice not 
                specified in this subparagraph.''; and
            (2) by adding at the end the following:
            ``(7) Electronic nicotine delivery system standards.--Not 
        later than 1 year after the date of enactment of the ENND Act, 
        the Secretary shall promulgate regulations setting forth 
        standards on the permissible design of electronic nicotine 
        delivery systems, and issue guidance for manufacturers to 
        implement such standards. Such standards, at a minimum, shall--
                    ``(A) prohibit refillable components or parts;
                    ``(B) prohibit any electronic nicotine delivery 
                system designed to look like combustible cigarettes or 
                commonplace, nonmedical devices, such as pens or USB 
                flash drives; and
                    ``(C) require each electronic nicotine delivery 
                system and its components and parts to be tamper-
                proof.''.
    (b) Definitions.--
            (1) In general.--Section 900 of the Federal Food, Drug, and 
        Cosmetic Act (21 U.S.C. 387) is amended--
                    (A) by redesignating paragraphs (8) through (22) as 
                paragraphs (10) through (24); and
                    (B) by inserting after paragraph (7) the following:
            ``(8) Electronic nicotine delivery system.--
                    ``(A) In general.--The term `electronic nicotine 
                delivery system'--
                            ``(i) means noncombustible tobacco 
                        products, including vapes, vaporizers, vape 
                        pens, hookah pens, electronic cigarettes (also 
                        known as `e-cigarettes' or `e-cigs'), and e-
                        pipes that deliver an aerosolized e-liquid that 
                        may contain nicotine, as well as varying 
                        compositions of flavorings, propylene glycol, 
                        vegetable glycerin, and other ingredients; and
                            ``(ii) includes components and parts, such 
                        as e-liquids, tanks, cartridges, pods, wicks, 
                        and atomizers.
                    ``(B) Components and parts.--The term `components 
                and parts', with respect to an electronic nicotine 
                delivery system, means the objects intended or 
                reasonably expected to be used with, or for, the human 
                consumption of a tobacco product that are not 
                accessories.
            ``(9) E-liquid.--The term `e-liquid' means liquid nicotine, 
        nicotine containing liquids (including liquid nicotine combined 
        with colorings, flavorings, or other ingredients), and liquids 
        that do not contain nicotine or other material made or derived 
        from tobacco, but that are intended or reasonably expected to 
        be used with or for the human consumption of a tobacco 
        product.''.
            (2) Conforming amendment.--Section 9(1) of the 
        Comprehensive Smokeless Tobacco Health Education Act of 1986 
        (15 U.S.C. 4408(1)) is amended by striking ``section 900(18)'' 
        and inserting ``section 900(20)''.

SEC. 4. MONITORING OF PUBLIC HEALTH RISKS OF TOBACCO USE.

    Not later than 1 year after the date of enactment of this Act and 
annually thereafter, the Secretary of Health and Human Services, in 
consultation with the Director of the National Institutes of Health, 
the Commissioner of Food and Drugs, the Director of the Centers for 
Disease Control and Prevention, and other heads of appropriate 
agencies, as the Secretary of Health and Human Services determines 
appropriate, shall submit to the Committee on Health, Education, Labor, 
and Pensions and the Committee on Appropriations of the Senate and the 
Committee on Energy and Commerce and the Committee on Appropriations of 
the House of Representatives, and publicly post on an internet website, 
a report on the public health risks of tobacco use that includes--
            (1) the public health implications of the use of tobacco 
        products, with a focus on electronic nicotine delivery systems 
        and other alternative tobacco products;
            (2) emerging trends in tobacco use, including the use of 
        tobacco flavors and new tobacco products;
            (3) updates on the public health awareness campaign 
        authorized by section 6; and
            (4) recommendations for Congress.

SEC. 5. APPLICATION OF TOBACCO EXCISE TAX TO ELECTRONIC NICOTINE 
              DELIVERY SYSTEMS.

    (a) Imposition, Rate, and Attachment of Tax.--Section 5701 of the 
Internal Revenue Code of 1986 is amended--
            (1) by redesignating subsection (h) as subsection (i); and
            (2) by inserting after subsection (g) the following new 
        subsection:
    ``(h) Electronic Nicotine Delivery.--
            ``(1) Electronic nicotine delivery systems.--
                    ``(A) In general.--On electronic nicotine delivery 
                systems (as defined in section 900(8) of the Federal 
                Food, Drug, and Cosmetic Act (21 U.S.C. 387(8))), 
                manufactured in or imported into the United States, 
                there shall be imposed a tax equal to $1.01 per 
                electronic nicotine delivery system.
                    ``(B) Exception.--This paragraph shall not apply to 
                any single-use electronic nicotine delivery system.
            ``(2) E-liquid.--On e-liquids (as defined in section 900(9) 
        of such Act) or single-use electronic nicotine delivery 
        systems, manufactured in or imported into the United States, 
        there shall be imposed a tax equal to--
                    ``(A) in the case of a product which contains less 
                than 5 percent nicotine by volume, $1.01, and
                    ``(B) in the case of the product which contains a 
                percentage of nicotine by volume which is equal to or 
                greater than 5 percent, an amount equal to the sum of--
                            ``(i) $1.01, plus,
                            ``(ii) for each percentage point of 
                        nicotine by volume contained in such product 
                        which is in excess of 5 percent, 20.2 cents 
                        (and a proportionate amount at the like rate on 
                        any such percentage which is not a whole 
                        number).''.
    (b) Definitions.--Section 5702 of the Internal Revenue Code of 1986 
is amended--
            (1) in subsection (c), by striking ``and roll-your-own 
        tobacco'' and inserting ``roll-your-own tobacco, electronic 
        nicotine delivery systems, and e-liquids''; and
            (2) in subsection (d), by striking ``or roll-your-own 
        tobacco'' each place it appears and inserting ``roll-your-own 
        tobacco, electronic nicotine delivery systems, and e-liquids''.
    (c) Effective Date.--The amendments made by this section shall 
apply to articles removed after the date which is 90 days after the 
date of enactment of this Act.

SEC. 6. PUBLIC AWARENESS CAMPAIGN.

    (a) In General.--The Secretary of Health and Human Services 
(referred to in this section as the ``Secretary'') shall conduct a 
public awareness campaign to educate the public about the public health 
implications of using electronic nicotine delivery systems (as defined 
in section 900 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 
387), as amended by section 3).
    (b) Funding.--To carry out subsection (a), for each of fiscal years 
2021 through 2024, there shall be transferred to the Secretary, from 
the General Fund of the Treasury, the lesser of--
            (1) the amount equal to the amount collected under 5701(h) 
        of the Internal Revenue Code of 1986 during the previous fiscal 
        year; or
            (2) $115,000,000.

SEC. 7. IMPLEMENTATION OF EXCISE TAX.

    (a) Transitional Rule.--Any person who--
            (1) on the date of the enactment of this Act, is engaged in 
        business as a manufacturer of electronic nicotine delivery 
        systems or e-liquids; and
            (2) before the applicable date, submits an application 
        under subchapter B of chapter 52 of the Internal Revenue Code 
        of 1986 to engage in such business,
may, notwithstanding such subchapter B, continue to engage in such 
business pending final action on such application. Pending such final 
action, all provisions of chapter 52 of such Code shall apply to such 
applicant in the same manner and to the same extent as if such 
applicant were a holder of a permit to manufacture electronic nicotine 
delivery systems or e-liquids under such chapter 52.
    (b) Floor Stocks Taxes.--
            (1) Imposition of tax.--On electronic nicotine delivery 
        systems or e-liquids manufactured in or imported into the 
        United States which are removed before the applicable date and 
        held on such date for sale by any person, there is hereby 
        imposed a tax in an amount equal to the tax which would be 
        imposed under section 5701 of the Internal Revenue Code of 1986 
        on the article if the article had been removed on such 
        applicable date.
            (2) Liability for tax and method of payment.--
                    (A) Liability for tax.--A person holding electronic 
                nicotine delivery systems or e-liquids on the 
                applicable date to which any tax imposed by paragraph 
                (1) applies shall be liable for such tax.
                    (B) Method of payment.--The tax imposed by 
                paragraph (1) shall be paid in such manner as the 
                Secretary shall prescribe by regulations.
                    (C) Time for payment.--The tax imposed by paragraph 
                (1) shall be paid on or before the date that is 120 
                days after the applicable date.
            (3) Articles in foreign trade zones.--Notwithstanding the 
        Act of June 18, 1934 (commonly known as the Foreign Trade Zone 
        Act, 48 Stat. 998, 19 U.S.C. 81a et seq.), or any other 
        provision of law, any article which is located in a foreign 
        trade zone on any tax increase date shall be subject to the tax 
        imposed by paragraph (1) if--
                    (A) internal revenue taxes have been determined, or 
                customs duties liquidated, with respect to such article 
                before such date pursuant to a request made under the 
                1st proviso of section 3(a) of such Act; or
                    (B) such article is held on such date under the 
                supervision of an officer of the United States Customs 
                and Border Protection of the Department of Homeland 
                Security pursuant to the 2d proviso of such section 
                3(a).
            (4) Controlled groups.--Rules similar to the rules of 
        section 5061(e)(3) of the Internal Revenue Code of 1986 shall 
        apply for purposes of this subsection.
            (5) Other laws applicable.--All provisions of law, 
        including penalties, applicable with respect to the taxes 
        imposed by section 5701 of the Internal Revenue Code of 1986 
        shall, insofar as applicable and not inconsistent with the 
        provisions of this subsection, apply to the floor stocks taxes 
        imposed by paragraph (1), to the same extent as if such taxes 
        were imposed by such section 5701. The Secretary may treat any 
        person who bore the ultimate burden of the tax imposed by 
        paragraph (1) as the person to whom a credit or refund under 
        such provisions may be allowed or made.
    (c) Definitions.--For purposes of this section--
            (1) In general.--Any term used in this section which is 
        also used in section 5701 or 5702 of the Internal Revenue Code 
        of 1986 shall have the same meaning as such term has in such 
        section.
            (2) Applicable date.--The term ``applicable date'' means 
        the day after the date which is 90 days after the date of 
        enactment of this Act.
            (3) Secretary.--The term ``Secretary'' means the Secretary 
        of the Treasury or the Secretary's delegate.
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