II 117th CONGRESS 2d Session S. 5213 IN THE SENATE OF THE UNITED STATES December 8, 2022 Mrs. Shaheen (for herself, Mr. Blumenthal , Mr. Brown , Mr. Reed , Mr. Durbin , Mr. Van Hollen , and Mr. Merkley ) introduced the following bill; which was read twice and referred to the Committee on Finance A BILL To amend the Internal Revenue Code of 1986 to deny the deduction for advertising and promotional expenses for tobacco products and electronic nicotine delivery systems.

1. Short title This Act may be cited as the No Tax Subsidies for E-Cigarette and Tobacco Ads Act . 2. Disallowance of deduction for advertising and promotional expenses for tobacco products and electronic nicotine delivery systems (a) In general Part IX of subchapter B of chapter 1 of subtitle A of the Internal Revenue Code of 1986 is amended by adding at the end the following new section: 280I. Disallowance of deduction for direct-to-consumer advertising of tobacco products and electronic nicotine delivery systems (a) In general No deduction shall be allowed under this chapter for expenses relating to direct-to-consumer advertising of tobacco products (including electronic nicotine delivery systems) for any taxable year. (b) Direct-to-Consumer advertising For purposes of this section, the term direct-to-consumer advertising means any dissemination, by or on behalf of a sponsor of a tobacco product (including an electronic nicotine delivery system product), of an advertisement which— (1) is in regard to such tobacco product (including an electronic nicotine delivery systems product), and (2) is primarily targeted to the general public, including through— (A) publication in journals, magazines, other periodicals, and newspapers, (B) broadcasting through media such as radio, television, and telephone communication systems, direct mail, and billboards, and (C) dissemination on the internet or through digital platforms (including social media, mobile media, web applications, digital applications, mobile applications, and electronic applications). (c) Tobacco product For purposes of this section, the term tobacco product means any product described in section 201(rr) of the Federal Food, Drug, and Cosmetic Act ( 21 U.S.C. 321(rr) ). (d) Electronic nicotine delivery system For purposes of this section, the term electronic nicotine delivery system — (1) 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 (2) does not include 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 described in subparagraph (A). . (b) Conforming amendment The table of sections for such part IX of the Internal Revenue Code of 1986 is amended by adding after the item relating to section 280H the following new item: Sec. 280I. Disallowance of deduction for direct-to-consumer advertising of tobacco products and electronic nicotine delivery systems. . (c) Effective date The amendments made by this section shall apply to amounts paid or incurred after the date of the enactment of this Act, in taxable years ending after such date.