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What is the Cole-Bishop Amendment?

Imagine this. You are happily employed at your job. You have built a business that provides a product consumers are demanding. Your customer base loves your company and product and you are stimulating the economy by providing jobs and paying taxes. Everything is going great and then one day you get to work and are slapped in the face by the government. New rules and laws are being imposed and they were written to benefit a competing industry. You, your employees, co-workers and industry brothers and sisters then come to the realization that the federal government is doing whatever they can to shut down your line of work. Welcome to our world. Welcome to vaping.

The vaping industry has had its world turned upside down. In May of this year, the Food and Drug Administration (FDA) announced their deeming regulations for the vaping and electronic cigarette industry. The rules are strict. The hurdles to overcome are high and the patience and resolve of the industry is being tested. In the few months since the regulations were announced several vape shops have already closed their doors. E-liquid companies have ceased operations and one of the largest e-cigarette companies, NJoy, has filed for Chapter 11 bankruptcy. It is hard to argue that the federal government is not the cause of all of this. When reading through the regulations, it is easy to assume that lawmakers are in the pocket of Big Tobacco. Thankfully, not all operate this way. Thanks to two members of congress the vaping industry may survive after all.

On April 19, 2016, The House Appropriations Committee voted to include an amendment to the 2017 Agricultural Appropriations bill. H.R. 2058, sponsored by representatives Tom Cole (R-OK) and Sanford Bishop (D-GA), will amend the February 15, 2007 predicate date for unregulated tobacco products. This includes electronic vaping devices and e-liquid used in them.

A huge hurdle with the regulations is the February 15, 2007 predicate date. This date is commonly referred to as the “grandfather date” and products on the market before this date are not subject to the Premarket Tobacco Product Application (PMTA) process. Any product not on the market as of 2/15/2007 is therefore considered a “new” product and must be registered with the federal government. Not a big deal? It would not be if vaping and e-cigs were introduced to the United States prior to 2007. Since that is the same year the products were introduced, an overwhelming majority of current products on the market do not qualify and are not being “grandfathered” in.

The PMTA process is very time consuming and expensive. Our company, like most others, have no problem with sensible regulation and for years have been waiting for rules to be enforced to ensure all companies are operating safely. There are not many companies inside or outside of the vaping industry that can afford an expense that could exceed $1 million. There are even fewer that would go through the process without a guaranteed approval. The PMTA process is not guaranteed and this is why the Cole-Bishop bill is so important. The amendment will move the predicate date forward to the current day allowing companies to continue operations without financially crippling them with the process.

The Cole-Bishop amendment is still a long way off from becoming law. The Agricultural Appropriations bill will have to be voted on and passed by the House and Senate before it moves on to the President for his/her signature. Recently, additional lawmakers (Rep. Brad Ashford D-NE, Rep. Collin Peterson D-MN) have co-sponsored the bill. This will increase the chances of passing but much like the PMTA process it isn’t guaranteed either. When talking about the government can anything else be expected?

Show your support for changing the predicate date in the Tobacco Control Act from February 15, 2007 to August 8, 2016 by emailing your lawmakers.

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