Standoff Over Age and Tobacco Definition Could Doom Vaping Regulations

But the two chambers have adopted different approaches on the issue and, with time running down on the legislative session, an ideological standoff could doom efforts to address it.

The House plan (HB 7089) would regulate vape shops, the retail establishments that sell e-cigarettes and other vaping products. Under the bill, the state Department of Business and Professional Regulation, which oversees sales of tobacco, would permit and regulate vape shops by creating a new category of “nicotine products” under state law. The retailers, who are currently unregulated, support the measure.

But the proposal would not do two things the Senate is seeking: identify e-cigarettes and vaping products as “tobacco products” and raise the age to purchase any tobacco products — including tobacco cigarettes, dip and chew, as well as e-cigarettes — from 18 to 21.

The age hike would bring Florida into compliance with a federal law that went into effect last month, and the Food and Drug Administration has defined “electronic nicotine delivery systems” as tobacco products since 2016.

Under the Senate plan, retailers who sell vape products would be regulated like other establishments that sell tobacco products and have to pay the same $50 permit fee to the Department of Business and Professional Regulation as retailers that sell cigarettes and other tobacco products.

Senate President Bill Galvano, a Bradenton Republican who has made a crackdown on youth vaping one of his legislative priorities, has said he does not support creating a separate regulatory structure for vape shops.

House Speaker José Oliva, meanwhile, is balking at raising the age to purchase cigarettes and vaping products, despite the federal law.

“An adult is 18 years old. An adult can stand trial and be put to death. An adult can be sent to war. An adult can enter into contracts. Adults can do all of these things. But then we decide, for some things you’re only somewhat of an adult. You need to be more of an adult than you are right now. So, I generally hesitate on ideological reasons on things like that,” Oliva, R-Miami Lakes, told reporters Wednesday. “I understand the federal government has already done it, and it’s probably a fait accompli. It’s probably the libertarian in me that has a hard time just moving that step.”

A variety of public health organizations — including the American Cancer Society Cancer Action Network, the American Heart Association, the American Lung Association and the Campaign for Tobacco-Free Kids — have endorsed the Senate strategy and condemned the House’s approach.

“The message that we’ve been taking to lawmakers is that the federal government has laid the roadmap out to show us how we can really make an impact in reducing the youth epidemic for e-cigarettes. We’re encouraging the Legislature to follow that roadmap. Regulate them appropriately as a tobacco product and make sure that only young people 21 and up, adults 21 and up, are able to access these products,” Heather Youmans, a lobbyist for the American Cancer Society Cancer Action Network, said in an interview Thursday.

The House measure is headed to the floor for a full vote, following Wednesday’s 15-1 approval by the House Judiciary Committee.

When asked where the Senate stood on the establishment of a new permitting system for vape shops, Rep. Jackie Toledo, the House bill sponsor, told the committee that “right now the Senate side is very fluid.”

Toledo, R-Tampa, added: “I believe there will be two licenses as well.”

But Sen. David Simmons, an Altamonte Springs Republican who is shepherding the Senate proposals (SB 810, SB 1394), told The News Service of Florida it would be easier to regulate vape shops the same as retailers who sell tobacco products “because the regulatory mechanism” already exists.

“There’s an existing regulatory structure that does not require the Department of Business and Professional Regulation to do anything else and set up another system,” he said.

Simmons, however, said he was “happy to hear the suggestions that may exist in the House,” stressing that lawmakers need to take action. The legislative session is scheduled to end March 13.

“We have a crisis with respect to our young people. Whatever we’re doing today is not working. We are not solving the problem by staying with the status quo,” said Simmons, whose proposals are awaiting a full Senate vote.

A federal survey issued last year found that more than one-quarter of high-school students — 27.5 percent — reported using e-cigarettes within the past 30 days. The number increased from 20 percent in 2018.

The rapid rise in the use of e-cigarettes among teens prompted the federal law that raised the age to purchase tobacco products from 18 to 21 and has sparked state officials throughout the country to take other actions.

“One thing is real sure. The existing present system with respect to keeping these high nicotine and unregulated vaping products out of the hands of children is, has been a total failure,” Simmons said.

But Youmans said the state would be better off to do nothing than to pass the House bill.

“If the state isn’t ready to regulate them appropriately, then we should come back and try it next year. We do have some time to get these regulations in place and we want to make sure we get it right,” she said. “We’ve waited too long. … Now we’re in an epidemic and now we need to look at evidence-based policies to get us out of the problem we’re in.”

–Dara Kam, News Service of Florida