II 115th CONGRESS 2d Session S. 3701 IN THE SENATE OF THE UNITED STATES December 4, 2018 Mr. Hatch (for himself and Mr. Udall ) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions A BILL To protect and educate children about the dangers of e-cigarettes and other electronic nicotine delivery systems, and for other purposes.

1. Short title This Act may be cited as the Smoke-Free Schools Act of 2018 . 2. Findings Congress finds the following: (1) The use of tobacco among young students remains a serious health concern, with more than 1 in every 4 high school students, and approximately 1 in every 14 middle school students, reporting recently using a tobacco product. (2) Roughly 95 percent of smokers will start smoking before they are 21 years of age, with more than 90 percent of adult smokers reporting having started when they were teens. (3) Since 2014, e-cigarettes and other electronic nicotine delivery systems (commonly referred to as ENDS ) have become the most commonly used and popular tobacco products among middle school and high school students. (4) The use of electronic nicotine delivery systems, including e-cigarettes, continues to rise, with the Centers for Disease Control and Prevention and the Food and Drug Administration having recorded a 50-percent and more than 75-percent increase in e-cigarette use among middle school and high school students, respectively, from 2017 to 2018. (5) The most recent data finds that 3,620,000 middle school and high school students were current e-cigarette users in 2018, an increase of 1,500,000 students in just one year. (6) Despite a 2018 National Academies of Sciences, Engineering, and Medicine report that found e-cigarette aerosol contained fewer toxicants than combusted cigarette smoke, e-cigarettes present unique health concerns for middle school and high school students. (7) Electronic nicotine delivery systems, including e-cigarettes, contain nicotine, a drug the Surgeon General has determined is highly addictive and can be harmful to the development of the adolescent brain. (8) Congress has a major policy-setting role in ensuring that the use of tobacco products among minors is discouraged to the maximum extent possible. (9) Additionally, local educational agencies should be given greater flexibility to target specific funding to efforts aimed at eradicating the problem of the use of electronic nicotine delivery systems, including e-cigarettes, as such use affects student health, productivity, safety, and outcomes and impedes a distraction-free learning environment. 3. Prohibition of electronically delivered nicotine systems in schools (a) Prohibition The Pro-Children Act of 2001 ( 20 U.S.C. 7971 et seq.) is amended— (1) in section 8572 ( 20 U.S.C. 7972 ), by adding at the end the following: (6) Tobacco product The term tobacco product means a tobacco product within the meaning of the term under the Federal Food, Drug, and Cosmetic Act ( 21 U.S.C. 301 et seq.). ; (2) in section 8573 ( 20 U.S.C. 7973 )— (A) in subsection (a), by inserting or the use of any tobacco product after smoking ; (B) in subsection (b)(1), by inserting or the use of any tobacco product after smoking ; (C) in subsection (c)— (i) in paragraph (1), by inserting or the use of any tobacco product after smoking ; and (ii) in paragraph (2)(A), by inserting or the use of any tobacco product after smoking ; and (D) in subsection (d)— (i) by striking Notice .—The and inserting the following: Notice .— (1) In general Except as provided in paragraph (2), the ; and (ii) by adding at the end the following: (2) Rule for tobacco products Any prohibition under subsections (a) through (c) regarding a tobacco product that was not already prohibited, as such section was in effect on the day before the date of enactment of the Smoke-Free Schools Act of 2018 , shall be effective 30 days after the date of enactment of such Act. . (b) Conforming amendments The Pro-Children Act of 2001 ( 20 U.S.C. 7971 et seq.) is amended— (1) in section 8571 ( 20 U.S.C. 7971 ), by striking part and inserting subpart ; (2) in section 8572 ( 20 U.S.C. 7972 )— (A) in the matter preceding paragraph (1), by striking part and inserting subpart ; and (B) in paragraph (2)(B), by striking part and inserting subpart ; and (3) in section 8574 ( 20 U.S.C. 7974 ), by striking part each place the term appears and inserting subpart . (c) Repeal The Pro-Children Act of 1994 ( 20 U.S.C. 6081 et seq.) is repealed. 4. Clarifying title IV of ESEA to allow schools to use funding to address e-cigarette use among students (a) Safe and healthy student funding Subpart 1 of part A of title IV of the Elementary and Secondary Education Act of 1965 ( 20 U.S.C. 7111 et seq.) is amended— (1) in section 4102 ( 20 U.S.C. 7112 ), by adding at the end the following: (9) Tobacco product The term tobacco product means a tobacco product within the meaning of the term under the Federal Food, Drug, and Cosmetic Act ( 21 U.S.C. 301 et seq.). ; (2) in section 4104(b)(3)(B) ( 20 U.S.C. 7114(b)(3)(B) )— (A) in clause (iii), by striking and after the semicolon; and (B) by adding at the end the following: (v) supporting local educational agencies in the reduction or elimination of the use of electronic nicotine delivery systems (including e-cigarettes) or other tobacco products among children in schools; and ; and (3) in section 4108(5)(A) ( 20 U.S.C. 7118(5)(A) )— (A) in clause (i), by striking and after the semicolon; (B) in clause (ii), by inserting and after the semicolon; and (C) by adding at the end the following: (iii) targeted efforts to reduce or eliminate the use of electronic nicotine delivery systems (including e-cigarettes) or other tobacco products among children in schools; . (b) 21st Century Community Center funding Section 4205(a)(12) of the Elementary and Secondary Education Act of 1965 ( 20 U.S.C. 7175 ) is amended by inserting , targeted efforts to reduce or eliminate the use of electronic nicotine delivery systems (including e-cigarettes) or other tobacco products (as defined in section 4102) among children in schools, before and counseling . 5. Studies and reports on the use of electronic nicotine delivery systems (a) FDA studies (1) Study Not later than 60 days after the date of enactment of this Act, the Secretary shall, in coordination with the Secretary of Education and the Director of the Centers for Disease Control and Prevention, conduct a study, or several studies, including all of the following topics: (A) Best practices for schools and local educational agencies to take in addressing electronic nicotine delivery systems in schools, which may include— (i) banning electronic nicotine delivery systems on school grounds; or (ii) steps that can be taken by schools to educate students regarding the dangers of electronic nicotine delivery systems. (B) Gaps in knowledge of the harms of electronic nicotine delivery system use among adolescents and young adults, including injuries and poisoning relating to electronic nicotine delivery systems. (C) The dose-response association between electronic nicotine delivery system use and combustible tobacco smoking in adolescents and young adults, including an assessment of the frequency and intensity of use and dependence systems for both types of products. (D) To the extent practicable, current efforts, as of the date of the study, by local educational agencies to target Federal funding to combat electronic nicotine delivery system use in schools. (2) Consultation In the process of conducting any study under paragraph (1), the Secretary shall solicit input from State educational agencies, local educational agencies, consumer advocacy groups, physicians specializing in lung disease, addiction specialists, or any other entity determined appropriate by the Secretary, after consultation with the Secretary of Education and the Director of the Centers for Disease Control and Prevention. (3) Report Not later than 1 year after the date of enactment of this Act, the Secretary shall prepare and submit, to the Committee on Health, Education, Labor, and Pensions of the Senate and the Committee on Education and the Workforce of the House of Representatives, a report on each study conducted under paragraph (1). Such report shall include recommendations for such legislative and administrative actions as such Secretary determines to be appropriate. (b) FTC studies Notwithstanding any other provision of law, if the Federal Trade Commission undertakes any study regarding the marketing effects of tobacco products, the Federal Trade Commission shall ensure that the study addresses the marketing effects of electronic nicotine delivery systems. (c) Definitions In this section: (1) Electronic nicotine delivery system The term electronic nicotine delivery system means any electronic nicotine delivery system, including e-cigarettes. (2) ESEA definitions The terms local educational agency and State educational agency have the meanings given the terms in section 8101 of the Elementary and Secondary Education Act of 1965 ( 20 U.S.C. 7801 )). (3) Secretary The term Secretary means the Secretary of Health and Human Services, acting through the Commissioner of Food and Drugs.