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April 24th, 2014:

FDA proposes to extend its tobacco authority to additional tobacco products, including e-cigarettes

As part of its implementation of the Family Smoking Prevention and Tobacco Control Act signed by the President in 2009, the U.S. Food and Drug Administration today proposed a new rule that would extend the agency’s tobacco authority to cover additional tobacco products.

Products that would be “deemed” to be subject to FDA regulation are those that meet the statutory definition of a tobacco product, including currently unregulated marketed products, such as electronic cigarettes (e-cigarettes), cigars, pipe tobacco, nicotine gels, waterpipe (or hookah) tobacco, and dissolvables not already under the FDA’s authority. The FDA currently regulates cigarettes, cigarette tobacco, roll-your-own tobacco, and smokeless tobacco.

“This proposed rule is the latest step in our efforts to make the next generation tobacco-free,” said HHS Secretary Kathleen Sebelius.
Consistent with currently regulated tobacco products, under the proposed rule, makers of newly deemed tobacco products would, among other requirements:

· Register with the FDA and report product and ingredient listings;
· Only market new tobacco products after FDA review;
· Only make direct and implied claims of reduced risk if the FDA confirms that scientific evidence supports the claim and that marketing the product will benefit public health as a whole; and
· Not distribute free samples.
In addition, under the proposed rule, the following provisions would apply to newly “deemed” tobacco products:
· Minimum age and identification restrictions to prevent sales to underage youth;
· Requirements to include health warnings; and
· Prohibition of vending machine sales, unless in a facility that never admits youth.

“Tobacco remains the leading cause of death and disease in this country. This is an important moment for consumer protection and a significant proposal that if finalized as written would bring FDA oversight to many new tobacco products,” said FDA Commissioner Margaret A. Hamburg, M.D. “Science-based product regulation is a powerful form of consumer protection that can help reduce the public health burden of tobacco use on the American public, including youth.”

“Tobacco-related disease and death is one of the most critical public health challenges before the FDA,” said Mitch Zeller, director of the FDA’s Center for Tobacco Products. “The proposed rule would give the FDA additional tools to protect the public health in today’s rapidly evolving tobacco marketplace, including the review of new tobacco products and their health-related claims.”

The FDA proposes different compliance dates for various provisions so that all regulated entities, including small businesses, will have adequate time to comply with the requirements of the proposed rule.

Products that are marketed for therapeutic purposes will continue to be regulated as medical products under the FDA’s existing drug and device authorities in the Food, Drug &Cosmetic Act.

The proposed rule will be available for public comment for 75 days. While all comments, data, research, and other information submitted to the docket will be considered, the FDA is requesting comments in certain areas, including:

· The FDA recognizes that different tobacco products may have the potential for varying effects on public health and is proposing two options for the categories of cigars that would be covered by this rule. The FDA specifically seeks comment on whether all cigars should be subject to deeming, and which other provisions of the proposed rule may be appropriate or not appropriate for different kinds of cigars.
· The FDA seeks answers to the many public health questions posed by products, such as e-cigarettes, that do not involve the burning of tobacco and inhalation of its smoke, as the agency develops an appropriate level of regulatory oversight for these products. The FDA seeks comment in this proposed rule as to how such products should be regulated.

The FDA, an agency within the U.S. Department of Health and Human Services, protects the public health by assuring the safety, effectiveness, and security of human and veterinary drugs, vaccines and other biological products for human use, and medical devices. The agency also is responsible for the safety and security of our nation’s food supply, cosmetics, dietary supplements, products that give off electronic radiation, and for regulating tobacco products.

No Exclusions! Why Carveouts Would Weaken the Trans-Pacific Partnership

The goal of the Trans-Pacific Partnership (TPP) is to craft a high-standard free trade agreement for the 21st Century that will create jobs and economic growth by reducing tariffs and trade barriers on all goods and services.

In an op-ed in the Singapore Straits Times [subscription required], Wan Saiful Wan Jan, head of the Institute for Democracy and Economic Affairs, explains why excluding even politically unpopular products like tobacco would prevent that goal from being achieved:

There is no debating that cigarettes are harmful. But if this exemption becomes law, it would establish a frightening precedent for other types of exemptions.

The TPP agreement is supposed to represent a trade framework suitable to the hyper-integrated, fluid global economy of the 21st century.

Singling out tobacco is unnecessary because TPP, like other trade agreements, won’t limit the ability of member countries from crafting public health regulations.

Furthermore, singling out one product will open a Pandora’s Box as other governments go after their particular bête noirs. Under the guise of public health regulations, countries could erect protectionist barriers to alcoholic beverages, sugary soft drinks, genetically-modified foods, and other products.

Wan Jan writes:

If a nation is charged with violating a free-trade pact by sheltering a favoured industry, it could then cite the tobacco exemption to legally justify targeted protectionism. Special interests would be fully empowered to warp global trade channels.

Instead of a trade agreement fit for a modern, global economy, we’d end up with something that will impede trade, Wan Jan notes:

A warped TPP that arbitrarily diminishes trade protection for one specific product category would reset the international trading system back to the 19th century, when global trade was plagued with costly and inefficient barriers to commerce.

Because TPP will set the standard for free trade agreements in the decades ahead, it’s crucial that it be a comprehensive, high-standard agreement.