Overnight Regulation

Overnight Regulation: E-cig industry preps to fight tobacco rule

Welcome to Overnight Regulation, your news from Capitol Hill and beyond. It's Thursday evening here and we're ready for Friday after a busy week with the House swearing in a new Speaker and voting on a surprising budget deal.

Here's the latest.

THE BIG STORY

Tobacco trade associations are in a frenzy after one group claimed to have a leaked copy of the Obama administration's final rules to bring electronic cigarettes and conventional cigars under the agency's jurisdiction for the first time.

The Tobacco Vapor Electronic Cigarette Association, which claimed to have obtained a leaked copy, said the Food and Drug Administration left the provision most concerning to industry groups intact: a mandate that any nicotine delivery devices that hit stores after Feb. 15, 2007, will have to apply retroactively for approval.

The FDA has said it does not believe it has the authority to alter or amend the date, because it was set by statute in the Family Smoking Prevention and Tobacco Control Act that was signed into law by President Obama in 2009.

Industry groups argue the process would cost millions of dollars, making it prohibitively expensive for companies to keep their products on store shelves.

"I am all for logical and responsible regulation -- not for the annihilation of the category," said Ray Story CEO of the Tobacco Vapor Electronic Cigarette Association, suggesting that the industry's products are less harmful than traditional cigarettes.

TVECA is steeling for a legal battle, threatening to take FDA to court if the rules are not changed, and it isn't alone. Industry-backed Cigar Rights of America said it would also fight the rules in court.

"We'd have to," said the group's executive director, J. Glynn Loope.

If the table of contents the TVECA leaked is accurate, he said, the cigar industry would be regulated the same way the FDA is regulating other tobacco products.

When the rules were first proposed in April 2014, the FDA was weighing whether to exempt premium cigars from the regulations. The agency defined premium cigars as any handmade cigar without a tip or filter that costs $10 or more.

Loope was lobbying for that exemption.

"When they were debating the original Tobacco Control Act, every floor speech revolved around youth access and chemical addiction," he said. "We don't meet that criteria, which is why we think we should be exempt."

Read the full story here: http://bit.ly/1RfZcjt

TOMORROW'S REGS TODAY

The Obama administration will publish 205 new regulations, proposed rules, notices and other administrative actions in Friday's edition of the Federal Register.

--The Department of Defense (DOD) will formally remove Cuba from its list of state sponsors of terrorism.

Following President Obama's call to repair relations with Cuba and in the footsteps of other federal agencies, the Defense Department's Defense Acquisition Regulations System is removing restrictions it had placed on purchasing military equipment from Cuba.

The changes go into effect immediately. http://bit.ly/1NbiCqK

--The Pipeline and Hazardous Materials Safety Administration (PHMSA) will prohibit passengers and crew members from carrying e-cigarettes and similar electronic smoking devices in their checked bags while traveling.

The PHMSA is joining the Federal Aviation Administration in taking this step as a precautionary measure to prevent e-cigarettes from exploding or catching fire during transportation.

"The use of e-cigarettes has been rising substantially and e-cigarettes have increasingly become a common item in passenger baggage," the agency wrote.

The new rules go into effect in seven days. http://bit.ly/1NDzWmB

--The Equal Employment Opportunity Commission (EEOC) will propose new rules for employer wellness programs.

The rules will affect employees whose spouses are on their healthcare plan.

The public has 60 days to comment. http://bit.ly/1NaCtpX

--The Fish and Wildlife Service (FWS) will propose new restrictions on the importation of 11 species of injurious fish that could either harm people or have a negative impact on agriculture.

The injurious fish include the crucian carp, Eurasian minnow, Prussian carp, roach, stone moroko, Nile perch, Amur sleeper, European perch, zander, and wels catfish.

The public has 60 days to comment. http://bit.ly/1MwEzBI

NEWS RIGHT NOW

How a small White House agency stalls life-saving regulations -- Reuters. http://reut.rs/1MWFsOj

CFPB fines employment screening firms for alleged inaccurate reports http://bit.ly/1HeswkY

FDA under pressure to ban chemicals in face paint http://bit.ly/1NDvWCw

Groups fight to keep cholesterol warnings in dietary guidelines http://bit.ly/1M3GZ8S

FDA blocking tobacco sales http://bit.ly/1WkdDtt

Christie, Bush differ on government involvement in fantasy sports http://bit.ly/1HeLOXi

FanDuel CEO calls for regulation of fantasy sports websites http://bit.ly/1MlfxPC

BY THE NUMBERS

40: Average number of days it took for a union election to place before an NLRB ruling to speed up the process.

27: Average number of days for a union election after the ruling.

(Source: A study from Atlanta law firm Fisher & Phillips.)

QUOTE OF THE DAY

"Toxic Chinese chemicals in children's Halloween makeup and face paint is a scary thought, and yet, often times, parents don't even know what's in these products," Sen. Charles Schumer (D-N.Y.) said in a statement Thursday.

Nearly 40,000 people are petitioning the FDA to ban lead, nickel, cobalt and chromium from Halloween face paints after Schumer raised concerns about the issue earlier this month. http://bit.ly/1M3PWio

We'll work to stay on top of these and other stories throughout the week, so check The Hill's Regulation page (http://thehill.com/regulation) early and often for the latest. And send any comments, complaints or regulatory news tips our way, tdevaney@thehill.com or lwheeler@thehill.com. And follow us at @timdevaney and@wheelerlydia.

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