In response to the Food and Drug Administration’s (FDA) draft guidance on e-cigarettes, 46 members of the House of Representatives, in April, submitted a formal comment letter to the FDA expressing their concerns with the proposed retail restrictions.

In its draft guidance, the FDA proposes to focus its enforcement efforts on stores that allow minors to enter (such as convenience stores), essentially banning these types of stores from selling most flavored e-cigarettes. Simultaneously, the FDA intends to allow stores that are adult-only (such as vape shops and tobacco shops) to continue selling these products. With its proposed action, the FDA has not provided data that supports this type of distinction between adult-only stores and stores where minors can enter. In fact, the draft guidance cites data showing that more teens acquire e-cigarettes from vape shops (14.8%) than from convenience stores (8.4%).

The letter, which was led by Congressman Trey Hollingsworth (R-IN), underlines that the proposed restrictions pick winners and losers in the marketplace by allowing certain channels of trade to sell these products and prohibiting other channels, such as convenience store and grocery channels.

“Ultimately, we should want a marketplace wherein all players are competing under equal rules and that advances the stated, pressing public policy need of keeping e-cigarettes out of the hands of minors. That mission is advanced by having a set of guidelines that enables and ensures compliance by all retailers, not one that fundamentally excludes one set of retailers who have proven capable of compliance with laws forbidding the sale of products to minors,” wrote the members in the letter.

Additionally, the letter raises concerns about the FDA’s process in implementing the draft guidance. While the agency accepted public comments on the draft guidance from March 13 to April 30, 2019, it did not go through a notice and comment rulemaking, which it is required to do under the Tobacco Control Act when regulating the sale and distribution of tobacco products.

The following members of the House of Representatives signed the letter:

Trey Hollingsworth (IN)
Kelly Armstrong (ND)
Ken Buck (CO)
Ted Budd (NC)
G.K. Butterfield (NC)
Ken Calvert (CA)
Mike Conaway (TX)
Paul Cook (CA)
Sean Duffy (WI)
Tom Emmer (MN)
Virginia Foxx (NC)
Brian Fitzpatrick (PA)
Matt Gaetz (FL)
Greg Gianforte (MT)
Tom Graves (GA)
Glenn Grothman (WI)
Michael Guest (MS)
Kevin Hern (OK)
Richard Hudson (NC)
Jim Jordan (OH)
John Joyce (PA)
Trent Kelly (MS)
Barry Loudermilk (GA)

David McKinley (WV)
Mark Meadows (NC)
Dan Meuser (PA)
Carol Miller (WV)
Alex Mooney (WV)
Ralph Norman (SC)
Steven Palazzo (MS)
Greg Pence (IN)
Scott Perry (PA)
Guy Reschenthaler (PA)
Denver Riggleman (VA)
David Rouzer (NC)
John Rutherford (FL)
Pete Stauber (MN)
Steve Stivers (OH)
G.T. Thompson (PA)
William Timmons (SC)
Mark Walker (NC)
Steve Watkins (KS)
Joe Wilson (SC)
Steve Womack (AR)
Jim Hagedorn (MN)
Mike Kelly (PA)

The members concluded their letter by applauding the age verification efforts of the convenience store industry. “The convenience stores and grocery stores that have for decades demonstrated consistent compliance deserve the data underpinning a decision that would bar their sale of these products to legal adults and a process wherein the industry could provide input about the guidance’s impact on equality in the marketplace,” the letter states.

NACS, along with hundreds of retail companies, submitted formal comment letters to the FDA on its draft guidance. After the FDA reviews all public comments, it intends to publish its final guidance.