Photo: Tony Dejak, Associated Press
WASHINGTON — House lawmakers took several steps Wednesday to compel more federal regulation and research to fight a national epidemic of vaping-related illnesses that has caused 26 deaths, including one in New York.
The health crisis is backdropped by skyrocketing e-cigarette use by American teens. The products represent a new frontier of tobacco industry influence that is challenging federal, state and local officials alike.
“To say that we are concerned is the biggest understatement,” said U.S. Rep. Nita Lowey, D-N.Y., who chairs the House Appropriations Committee. “One in four kids are using e-cigarettes and now a new generation of Americans is hooked on nicotine.”
Congress gave the Food and Drug Administration the power to regulate all tobacco products, including e-cigarettes, in 2009. But the FDA, under two administrations, has exempted e-cigarettes from the pre-market review process, a process in which manufacturers prove the safety of their products before they are sold. The agency is only now collecting pre-market applications for e-cigarettes, an FDA spokesman said, although the devices have already flooded the market.
On Sept. 11, President Donald Trump and his administration announced the FDA was working on a “guidance document” that would lead to a ban of all e-cigarette flavors, except tobacco-flavored products, and remove them from all retail channels. But such a document has not yet been released, nor has a federal ban taken effect.
Senate Minority Leader Charles E. Schumer, D-N.Y., slammed this proposed ban as containing a critical loophoole: companies can reintroduce their kid-friendly flavors to the market with sign-off from the FDA. He has said federal policy needs to go further.
Also in September, Gov. Andrew Cuomo issued an executive order creating a state ban on all e-cigarettes, except tobacco and menthol flavors. But a state court temporarily stopped the ban from taking effect in early October. That case is ongoing.
Meanwhile, the Centers for Disease Control and Prevention has been scrambling since August to identify the cause of more than 1,000 cases of lung illnesses associated with vaping and e-cigarettes around the nation. This outbreak is mostly affecting teens and young adults.
Frustrated lawmakers of both parties are now considering steps to spur more federal action.
One House committee held a hearing Wednesday on a bipartisan package of laws that would fight teen tobacco use, including by banning kid-friendly e-cigarette flavors. Another committee passed a bill Wednesday to help block online sales of e-cigarettes to children by mandating age verification mechanisms be used. It received bipartisan support.
A House Appropriations subcommittee that oversees Health and Human Services also held a hearing on e-cigarettes and public health Wednesday. That committee and the full House passed a bill to increase funds for the CDC’s Tobacco Prevention and Cessation Efforts by $40 million in fiscal year 2020. The Senate has not included the same increase in its appropriations bill.
The House-passed bill also provides $100 million to bolster the nation’s public health infrastructure, which is strained as health agencies around the country try to share information about vaping-related illnesses and deaths with the CDC using antiquated mechanisms like fax machines and compact disks.
“We will go to battle with our colleagues on the Senate side so we can provide the kind of resources that are necessary,” said U.S. Rep. Rosa DeLauro, D-Conn., who chaired the hearing.
Many senators are already onboard with a tougher stance on e-cigarettes. Republicans and Democrats have floated bills to ban some e-cigarette flavors, create design standards for the products and apply tobacco taxes to them. Senate Majority Leader Mitch McConnell, R-Ky., has filed legislation to raise the age to buy tobacco to 21.
A bipartisan group of senators sent the FDA head a letter in September urging the agency to immediately pull Juul and other e-cigarettes from the market.
Since 2016, the agency has sent more than 8,000 warning letters to retailers for sales of e-cigarettes to minors, misleading labeling and advertising violations in an attempt to regulate the flourishing new industry. It has also sought financial penalties in more than 100 cases.
“FDA’s oversight of these products is a top priority for the agency,” said Michael Felberbaum, an FDA spokesman. “We have aggressively enforced the law.”
But many lawmakers feel that’s not enough, and as they consider what to do, an outbreak of illnesses and deaths is snowballing.
Nearly 1,300 lung-injury cases associated with e-cigarettes and vaping were reported to the CDC as of last week, said Anne Schuchat, principal deputy director of the CDC, on Wednesday. The cases occurred in 49 states, the District of Columbia and the U.S. Virgin Islands. Most patients were under 35 years old.
In New York, vaping-related lung disease has hospitalized people in at least 50 instances, CDC data shows. A 17-year-old boy from the Bronx died from an illness after using the product.
Meanwhile, e-cigarettes are immensely popular, particularly among youth. In December 2018, the U.S. Surgeon General issued an advisory that called e-cigarette use among youth an epidemic.
In New York, e-cigarette use among high schoolers has grown from 10.5 percent in 2015 to 27.4 percent in 2018. Among 12th graders only, the number is 36.7 percent.
Flavored liquids, peer pressure and advertising using social media influencers all draw teens to vape, Meredith Berkman, a New York City mother and co-founder of Parents Against Vaping e-cigarettes, testified on Wednesday. Berkman recounted how her 16-year-old son Caleb listened to a presentation at school in which the speaker told students that e-cigarettes were safe and Juul products were “the iPhone of Vapes.” Parents later found out that speaker was a Juul sales representatives, Berkman said.
“Some of these companies are so brazen they are marketing to kids on the internet, on school websites like Quizlet,” said Berkman.
Out of concern, New York upped the age to buy tobacco products, including e-cigarettes, to 21. The new law will take effect in November.
While state and federal investigators have connected the illnesses and deaths to vaping, they have not yet identified a specific cause.
The CDC now believes that tetrahydrocannabinol (THC), the main psychoactive compound of marijuana, is linked to the illness outbreak, said Schuchat.
“Based on information from 573 patients who provided information on the substances they used in the three months prior to symptom onset, 76 percent reported using products containing THC, including 32 percent who reported exclusively using THC-containing products,” said Schuchat.
“We believe THC-containing products may contain chemicals or components that are contributing to this outbreak, and that most of these products appear to be obtained from informal sources like friends and family off the street,” she added. “However, because nicotine-containing products have been reported to be used, either alone or in conjunction with THC-containing products, we cannot exclude the possibility that nicotine-containing products may have a role.”
Finding the cause of the outbreak is challenging because many kinds of vaping products are sold, manufacturers, retailers and consumers can change their ingredients and individuals may be hesitant to report their use habits.
The CDC first became aware of serious illnesses connected to the products in August 2019, when Wisconsin reported a cluster of cases.
“Patients first experienced their symptoms from a few days to several weeks after they most recently used e-cigarettes or other vaping products,” Schuchat said. “Most patients reported a gradual onset of difficulty breathing, shortness of breath, or chest pain before hospitalization.”
The CDC has recommended that adults do not use e-cigarettes or vaping products with THC or nicotine. It also has recommended that youths, young adults and pregnant women never use e-cigarettes.
But it has not issued a blanket recommendation for all consumers to avoid all e-cigarettes and vapes. That frustrated Democrats on the Appropriations subcommittee who wanted to see the CDC take a stronger stance.
But Sally Satel, a scholar at the American Enterprise Institute and psychiatry lecturer at Yale School of Medicine, testified that e-cigarettes are an important off-ramp from smoking combustible cigarettes for smokers who are unsuccessful with other methods.
These adult smokers might also want flavored e-cigarettes, Satel said. The tobacco industry, including e-cigarette giant Juul, has been lobbying the FDA to exempt mint and menthol flavored e-cigarettes from the potential national ban.
“The lung injury problem is a story of the dangers of the black market, not of vaping,” Satel testified. “We must not impede vital access to vaping products for the 11-14 million adult vapers who might otherwise smoke instead or for the 38 million smokers who could switch to vaping if they cannot quit smoking by other means.”
Republicans on the subcommittee pressed Schuchat on why the CDC was not conducting more research on the health effects of cannabis use. Recreational marijuana use is legal in a handful of states, but illegal in most, including New York. Medical marijuana use is legal in numerous states under tight guidelines.