House Panel OKs New FDA Deeming Rule Grandfather Date

WASHINGTON, D.C. — Efforts to change the grandfather date for affected products under the Food and Drug Administration's (FDA) proposed deeming rule, particularly electronic cigarettes, are winding their way through Congress.

On Tuesday, the House Appropriations Committee voted in favor of an amendment to the FY 2017 Agriculture Appropriations Bill that would change the predicate date — also known as the grandfather date — for e-cigarettes, cigars and other tobacco products covered under the deeming rule from Feb. 15, 2007, as it is now proposed, to whatever date the FDA's final deeming rule goes into effect. 

The bipartisan amendment, introduced by Rep. Tom Cole (R-Okla.) and Rep. Sanford Bishop (D-Ga.), passed the committee by a 31-19 vote.

In its draft deeming rule, the FDA proposed that e-cigarettes be held to the same grandfather date as traditional cigarettes, which is Feb. 15, 2007. That date was spelled out in the Family Smoking Prevention and Tobacco Control Act of 2009. However, since e-cigarette and vaping products are relatively new compared to other tobacco products, many in the industry have argued that the February 2007 date would effectively remove most products from the market.

"This is fantastic news for public health and small businesses," George Conley, president of the American Vaping Association (AVA), said of the House committee's passage of the amendment. "The vapor industry and its consumers do not oppose sensible regulation, but the FDA's proposal is anything but sensible."

Conley added that modernizing the predicate date will not interfere with the FDA's ability to regulate vapor products.

"All this change does is force the agency to regulate the vapor products rather than just ban 99 percent-plus of products on the market today," he said.

The Cole-Bishop amendment, aside from changing the predicate date, also directs the FDA to set product standards, dictate labeling requirements, require retailer registration to effectuate youth access compliance checks, and ban self-service displays and vending machines in stores that permit minors. The amendment restricts the advertising of vapor products, too.

Still, the House committee's vote is just one step in the process of moving back the grandfather date in the deeming rule. The 2017 spending and budget bills may not be voted on by the full House and Senate until the end of the year, so uncertainty in the market will continue to linger, said the AVA.

"This is only the start of a long fight to keep this provision in the overall budget bill. The industry and its consumers need to put forth a massive effort to ensure that both Democrats and Republicans do not lose sight of the importance of this policy change," Conley urged.