I 116th CONGRESS 1st Session H. R. 293 IN THE HOUSE OF REPRESENTATIVES January 8, 2019 Ms. DeLauro introduced the following bill; which was referred to the Committee on Ways and Means , and in addition to the Committees on the Judiciary , and Energy and Commerce , for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To prevent and reduce the use of tobacco products, and for other purposes.

1. Short title This Act may be cited as the Youth Vaping Prevention Act of 2019 . 2. Table of contents The table of contents of this Act is as follows: Sec. 1. Short title. Sec. 2. Table of contents. Title I—Stop Tobacco Sales to Youth Sec. 101. Findings. Sec. 102. Amendments. Sec. 103. Exclusions regarding Indian tribes and tribal matters. Sec. 104. Severability. Sec. 105. Effective date. Title II—Establishing Excise Tax Equity Among All Tobacco Product Tax Rates Sec. 201. Establishing excise tax equity among all tobacco product tax rates. Title III—Restrictions on Use of Tobacco Flavors Sec. 301. Additional restrictions on use of tobacco flavors. I Stop Tobacco Sales to Youth 101. Findings The Congress finds the following: (1) Tobacco products cause numerous serious diseases, including cancer, heart disease, and respiratory disease, and they contain nicotine, a highly addictive substance. (2) According to the Surgeon General of the United States, adolescents are particularly vulnerable to the adverse effects of nicotine, and adolescent exposure to nicotine may have lasting adverse consequences for brain development. (3) Youth use of electronic cigarettes and hookah (water pipe) has risen according to the National Youth Tobacco Survey released by the Centers for Disease Control and Prevention, and the Food and Drug Administration, in April 2015. (4) Current use of electronic cigarettes among high school students tripled from 4.5 percent in 2013 to 13.4 percent in 2014 (compared to 1.5 percent in 2011); approximately 2,000,000 high school students currently use these products. (5) Current use of electronic cigarettes among middle school students tripled from 1.1 percent in 2013 to 3.9 percent in 2014; approximately 450,000 middle school students currently use these products. (6) Current use of hookah among high school students increased from 4.1 percent in 2011 to 9.4 percent in 2014. (7) Current use of cigars among high school students was 8.2 percent in 2014 (1,200,000 students). Current use of cigars among high school boys was 10.8 percent, about the same rate at which they smoke cigarettes (10.6 percent). (8) The sale of electronic cigarettes, cigars, hookah, and other tobacco products over the internet, and through mail, fax, or phone orders, makes it cheaper and easier for children to obtain these products. (9) Electronic cigarettes are being marketed in ways that appeal to youth, in the form of advertising using images that appeal to youth, advertisements on television and the internet, and sponsorships of events popular with youth, such as concerts and sporting events. (10) According to a study published in March 2015 in the Journal of the American Medical Association Pediatrics, 93.7 percent of youth participating in a study of internet electronic cigarette sales successfully purchased electronic cigarettes because the websites lacked adequate age-verification methods. 102. Amendments Section 1 of the Act of October 19, 1949 ( 15 U.S.C. 375 ); commonly referred to as the Jenkins Act ), is amended— (1) in paragraph (2)— (A) in subparagraph (A)— (i) in clause (i) by striking and at the end; (ii) in clause (ii) by striking the period at the end and inserting ; and ; and (iii) by adding at the end the following: (iii) includes electronic cigarettes. ; and (B) in subparagraph (B)— (i) in the heading by striking Exception and inserting Inclusions ; (ii) by striking does not include and inserting includes ; and (iii) by inserting and pipe tobacco (as defined in section 5702 of the Internal Revenue Code of 1986) before the period at the end; and (2) by inserting after paragraph (6) the following: (6A) electronic cigarette The term electronic cigarette means any electronic device that delivers nicotine, flavor, or other substance via an aerosolized solution (including an electronic cigarette, cigar, pipe, or hookah) to the user inhaling from the device (including any component, liquid, part, or accessory of such a device whether or not sold separately) but excludes a product that— (A) is approved by the Food and Drug Administration for sale as a tobacco cessation product or for another therapeutic purpose; and (B) is marketed and sold solely for a purpose approved as described in subparagraph (A). . 103. Exclusions regarding Indian tribes and tribal matters (a) In general Nothing in this Act or the amendments made by this Act shall be construed to amend, modify, or otherwise affect— (1) any agreements, compacts, or other intergovernmental arrangements between any State or local government and any government of an Indian tribe (as that term is defined in section 4(e) of the Indian Self-Determination and Education Assistance Act ( 25 U.S.C. 450b(e) )) relating to the collection of taxes on cigarettes or smokeless tobacco sold in Indian country; (2) any State laws that authorize or otherwise pertain to any such intergovernmental arrangements or create special rules or procedures for the collection of State, local, or tribal taxes on cigarettes or smokeless tobacco sold in Indian country; (3) any limitations under Federal or State law, including Federal common law and treaties, on State, local, and tribal tax and regulatory authority with respect to the sale, use, or distribution of cigarettes and smokeless tobacco by or to Indian tribes, tribal members, tribal enterprises, or in Indian country; (4) any Federal law, including Federal common law and treaties, regarding State jurisdiction, or lack thereof, over any tribe, tribal members, tribal enterprises, tribal reservations, or other lands held by the United States in trust for one or more Indian tribes; or (5) any State or local government authority to bring enforcement actions against persons located in Indian country. (b) Coordination of law enforcement Nothing in this Act or the amendments made by this Act shall be construed to inhibit or otherwise affect any coordinated law enforcement effort by one or more States or other jurisdictions, including Indian tribes, through interstate compact or otherwise, that— (1) provides for the administration of tobacco product laws or laws pertaining to interstate sales or other sales of tobacco products; (2) provides for the seizure of tobacco products or other property related to a violation of such laws; or (3) establishes cooperative programs for the administration of such laws. (c) Treatment of State and local governments Nothing in this Act or the amendments made by this Act shall be construed to authorize, deputize, or commission States or local governments as instrumentalities of the United States. (d) Enforcement within Indian Country Nothing in this Act or the amendments made by this Act shall prohibit, limit, or restrict enforcement by the Attorney General of the United States of this Act or an amendment made by this Act within Indian country. (e) Ambiguity Any ambiguity between the language of this section or its application and any other provision of this Act shall be resolved in favor of this section. (f) Definitions In this section— (1) the term Indian country has the meaning given that term in section 1 of the Act of October 19, 1949 ( 15 U.S.C. 375 ; commonly referred to as the Jenkins Act ), as amended by this Act; and (2) the term tribal enterprise means any business enterprise, regardless of whether incorporated or unincorporated under Federal or tribal law, of an Indian tribe or group of Indian tribes. 104. Severability If any provision of this title, or any amendment made by this title, or the application thereof to any person or circumstance, is held invalid, the remainder of the title and the application of the title to any other person or circumstance shall not be affected thereby. 105. Effective date This title, and the amendments made by this title, shall take effect 90 days after the date of the enactment of this Act. II Establishing Excise Tax Equity Among All Tobacco Product Tax Rates 201. Establishing excise tax equity among all tobacco product tax rates (a) Tax parity for pipe tobacco and roll-Your-Own tobacco Section 5701(f) of the Internal Revenue Code of 1986 is amended by striking $2.8311 cents and inserting $24.78 . (b) Tax parity for smokeless tobacco (1) Section 5701(e) of the Internal Revenue Code of 1986 is amended— (A) in paragraph (1), by striking $1.51 and inserting $13.42 ; (B) in paragraph (2), by striking 50.33 cents and inserting $5.37 ; and (C) by adding at the end the following: (3) Smokeless tobacco sold in discrete single-use units On discrete single-use units, $50.33 per thousand. . (2) Section 5702(m) of such Code is amended— (A) in paragraph (1), by striking or chewing tobacco and inserting , chewing tobacco, or discrete single-use unit ; (B) in paragraphs (2) and (3), by inserting that is not a discrete single-use unit before the period in each such paragraph; and (C) by adding at the end the following: (4) Discrete single-use unit The term discrete single-use unit means any product containing tobacco that— (A) is not intended to be smoked; and (B) is in the form of a lozenge, tablet, pill, pouch, dissolvable strip, or other discrete single-use or single-dose unit. . (c) Tax parity for large cigars (1) In general Paragraph (2) of section 5701(a) of the Internal Revenue Code of 1986 is amended by striking 52.75 percent and all that follows through the period and inserting the following: $24.78 per pound and a proportionate tax at the like rate on all fractional parts of a pound but not less than 5.033 cents per cigar. . (2) Guidance The Secretary of the Treasury, or the Secretary's delegate, may issue guidance regarding the appropriate method for determining the weight of large cigars for purposes of calculating the applicable tax under section 5701(a)(2) of the Internal Revenue Code of 1986. (d) Tax parity for roll-Your-Own tobacco and certain processed tobacco Subsection (o) of section 5702 of the Internal Revenue Code of 1986 is amended by inserting , and includes processed tobacco that is removed for delivery or delivered to a person other than a person with a permit provided under section 5713, but does not include removals of processed tobacco for exportation after wrappers thereof . (e) Clarifying tax rate for other tobacco products (1) In general Section 5701 of the Internal Revenue Code of 1986 is amended by adding at the end the following new subsection: (i) Other tobacco products Any product not otherwise described under this section that has been determined to be a tobacco product by the Food and Drug Administration through its authorities under the Family Smoking Prevention and Tobacco Control Act shall be taxed at a level of tax equivalent to the tax rate for cigarettes on an estimated per use basis as determined by the Secretary. . (2) Establishing per use basis For purposes of section 5701(i) of the Internal Revenue Code of 1986, not later than 12 months after the later of the date of the enactment of this Act or the date that a product has been determined to be a tobacco product by the Food and Drug Administration, the Secretary of the Treasury (or the Secretary of the Treasury's delegate) shall issue final regulations establishing the level of tax for such product that is equivalent to the tax rate for cigarettes on an estimated per use basis. (f) Clarifying definition of tobacco products (1) In general Subsection (c) of section 5702 of the Internal Revenue Code of 1986 is amended to read as follows: (c) Tobacco products The term tobacco products means— (1) cigars, cigarettes, smokeless tobacco, pipe tobacco, and roll-your-own tobacco, and (2) any other product subject to tax pursuant to section 5701(i). . (2) Conforming amendments Subsection (d) of section 5702 of such Code is amended by striking cigars, cigarettes, smokeless tobacco, pipe tobacco, or roll-your-own tobacco each place it appears and inserting tobacco products . (g) Tax rates adjusted for inflation Section 5701 of such Code, as amended by subsection (e), is amended by adding at the end the following new subsection: (j) Inflation adjustment (1) In general In the case of any calendar year beginning after 2019, the dollar amounts provided under this chapter shall each be increased by an amount equal to— (A) such dollar amount, multiplied by (B) the cost-of-living adjustment determined under section 1(f)(3) for the calendar year, determined by substituting ‘calendar year 2018’ for ‘calendar year 2016’ in subparagraph (A)(ii) thereof. (2) Rounding If any amount as adjusted under paragraph (1) is not a multiple of $0.01, such amount shall be rounded to the next highest multiple of $0.01. . (h) Effective dates (1) In general Except as provided in paragraphs (2) through (4), the amendments made by this section shall apply to articles removed (as defined in section 5702(j) of the Internal Revenue Code of 1986) after the last day of the month which includes the date of the enactment of this Act. (2) Discrete single-use units and processed tobacco The amendments made by subsections (b)(1)(C), (b)(2), and (d) shall apply to articles removed (as defined in section 5702(j) of the Internal Revenue Code of 1986) after the date that is 6 months after the date of the enactment of this Act. (3) Large cigars The amendments made by subsection (c) shall apply to articles removed after December 31, 2019. (4) Other tobacco products The amendments made by subsection (e)(1) shall apply to products removed after the last day of the month which includes the date that the Secretary of the Treasury (or the Secretary of the Treasury’s delegate) issues final regulations establishing the level of tax for such product. III Restrictions on Use of Tobacco Flavors 301. Additional restrictions on use of tobacco flavors (a) Tobacco product standards Section 907(a)(1) of the Federal Food, Drug, and Cosmetic Act ( 21 U.S.C. 387g ) is amended— (1) by redesignating subparagraph (B) as subparagraph (C); and (2) by inserting after subparagraph (A) the following: (B) Special rule for tobacco products other than cigarettes (i) In general Except as provided in clause (ii), a tobacco product that is not a cigarette, or any component, part, or accessory of such a product, shall not contain, as a constituent (including a smoke or aerosol constituent) or additive, an artificial or natural flavor (other than tobacco) or an herb or spice (including menthol, strawberry, grape, orange, clove, cinnamon, pineapple, vanilla, coconut, licorice, cocoa, chocolate, cherry, and coffee) that is a characterizing flavor of the tobacco product, tobacco smoke, or aerosol emitted from the product. Nothing in this subparagraph shall be construed to limit the Secretary’s authority to take action under this section or other provisions of this Act applicable to any artificial or natural flavor, herb, or spice not specified in this subparagraph. (ii) Exceptions An electronic nicotine delivery system component or part shall not contain or use an artificial or natural flavor (other than tobacco) that is a characterizing flavor of the product or its aerosol unless the Secretary issues an order finding that a manufacturer has demonstrated that use of the characterizing flavor— (I) will increase the likelihood of smoking cessation among current users of tobacco products; (II) will not increase the likelihood of youth initiation of nicotine or tobacco products; and (III) will not increase the likelihood of harm to the person using the characterizing flavor. . (b) Definitions Section 900 of the Federal Food, Drug, and Cosmetic Act ( 21 U.S.C. 387 ) is amended— (1) by redesignating paragraphs (8) through (22) as paragraphs (9) through (23); and (2) by inserting after paragraph (7) the following: (8) Electronic nicotine delivery system The term electronic nicotine delivery system — (A) means any electronic device that delivers nicotine, flavor, or another substance via an aerosolized solution to the user inhaling from the device (including e-cigarettes, e-hookah, e-cigars, vape pens, advanced refillable personal vaporizers, and electronic pipes) and any component, liquid, part, or accessory of such a device, whether or not sold separately; and (B) does not include a product that— (i) is approved by the Food and Drug Administration for sale as a tobacco cessation product or for another therapeutic purpose; and (ii) is marketed and sold solely for a purpose described in (i). . (c) 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(19) . (d) Effective Date The amendments made by this section shall take effect 1 year after the date of enactment of this Act.