Durbin Statement On Omnibus Provision To Close E-Cigarette Loophole, Regulate Synthetic Nicotine

WASHINGTON – U.S. Senate Majority Whip Dick Durbin (D-IL) today issued the following statement after he led a bipartisan Senate effort to successfully secure a provision in the fiscal year 2022 Omnibus Appropriations Bill that will clarify the Food and Drug Administration’s (FDA’s) ability to regulate products containing synthetic nicotine as tobacco products. This legislative fix was necessary to close legal loopholes that manufacturers of kid-friendly, flavored e-cigarettes sought to sidestep the FDA, which had the potential to erase recent progress made toward curbing the nationwide youth vaping epidemic. The most popular e-cigarette among children today, Puff Bar, uses synthetic nicotine.


“Vaping and tobacco companies have used every trick in the book to prey upon our kids. The shameful actions of e-cigarette manufacturers to use loopholes to harm our children and fuel addiction shows the disgraceful lengths they will go to increase their profits. This bipartisan provision I led will protect children from being hooked on e-cigarettes.  Now, FDA must use all of its tools to protect public health and regulate the industries that ignited the youth vaping epidemic.”


Nicotine that can be chemically synthesized in a laboratory—rather than derived from tobacco—arguably fell outside of FDA’s statutory definition of a tobacco product, which contributed to the explosion of youth use of the PuffBar vaping device. This ambiguity also created a scenario in which e-cigarette manufacturers whose applications get rejected by FDA sought to re-purpose their products with synthetic nicotine to evade regulation and remain on the market. The most recent National Youth Tobacco Survey (NYTS) found that more than two million U.S. middle school and high school students used e-cigarettes in 2021. Almost 85 percent of youths using e-cigarettes used flavored products. 


Last week, Durbin led a bipartisan letter with Senators Susan Collins (R-ME), and six other Democrats and Republicans, including Tim Kaine (D-VA), Mitt Romney (R-UT), Jeff Merkley (D-OR), Lisa Murkowski (R-AK), Elizabeth Warren (D-MA), and John Cornyn (R-TX) to Senate Majority Leader Chuck Schumer (D-NY) and Senate Minority Leader Mitch McConnell (R-KY), urging them to include this fix in the omnibus appropriations bill. Full text of the letter is available here.