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Minutes for HB2801 - Committee on Federal and State Affairs
Short Title
Requiring a manufacturer of electronic cigarettes to certify annually under penalty of perjury that the manufacturer has received marketing authorization from the United States food and drug administration for the electronic cigarettes, establishing annual fees, requiring the department of revenue to maintain a website directory containing a list of all electronic cigarette manufacturers and certified electronic cigarettes and establishing civil and criminal penalties for violations.
Minutes Content for Tue, Feb 20, 2024
Chairperson Carpenter opened the hearing on HB2801. The revisor provided an overview of the bill (Attachment 3).
Chairperson Carpenter recognized Brian Posler with Fuel True Independent Convenience of Kansas as a proponent on HB2801 (Attachment 4). He stated that the retailers in his organization believe that the public good of curbing the market for illicit vapes outweighs the increased regulatory burden faced by them. They support a vapor product directory bill. A directory will provide retailers with a critical tool which will allow them to differentiate between compliant and non-compliant products. A number of questions were asked by the Committee members.
Phillip Near, Jump Start Convenience Stores, was recognized by the Chair as a proponent (Attachment 5). He stated that he owns 26 convenience stores in Wichita and the surrounding area. He is concerned about the influx of illegal, unregulated e-cigarette products being smuggled in from overseas and the health risks it brings to youth. An e-cigarette directory would ensure that retailers and wholesalers are only selling e-cigarettes that comply with federal laws and regulations.
David Sylvia testified on behalf of Altria Client Services as a proponent of HB2801 (Attachment 6). He stated that the e-vapor market in Kansas and nationwide is characterized by chaos and uncertainty. For the past few years illicit disposable products manufactured by Chinese companies have flooded the marketplace. CDC estimates over 50 percent of the e-vapor marketplace consists of such disposables, posing a threat to consumers and the livelihood of law-abiding sellers and retailers in Kansas. The FDA has been trying to stop the importation of these products with import bans, cease and desist letters, and fines, but the proliferation of these products has overwhelmed the agency's enforcement ability. It is often impossible for wholesalers and retailers to know if they are breaking the law since there is no list of certified products to verify the legality of the product. A comprehensive directory in Kansas would provide a centralized resource that identifies and lists FDA-compliant products, making it easier for law enforcement agencies, wholesalers, and retailers to identify and remove illicit products from the market.
The Chair recognized Brian Davis, Davis Liquor Outlet, testified in favor of HB2801 (Attachment 7). He stated that this bill proposes the creation of a directory of state-approved products, offering clarity to retailers regarding the legality of products. He asked the Committee to pass HB2801.
Byron Johnson of BJs 66 testified in support of HB2801 (Attachment 8). He stated that keeping e-vapor products out of the hands of youth matters deeply to him, but there is no clear way for him to know what products are compliant with FDA regulation and legal to be sold and what products are not. A vapor directory will provide clarity for him to operate his store and be a responsible retailer.
The Chair recognized Scott Zaremba of Checkersxtra LLC as a proponent on the bill (Attachment 9). He stated HB2801 would create an e-vapor product directory that would help tobacco retailers identify illegal vapor products. Currently, the market lacks transparency, and it can be close to impossible to distinguish between legal and illegal products. Questions were asked by Representatives Kessler and Sanders.
Kathy Gunlock, Core-Mark, testified in support of HB2801 (Attachment 10). She stated that the adoption of a product directory in Kansas will allow responsible distributors and retailers to know what is compliant and what is not. In addition to protecting consumers, it would facilitate an equal playing field for all distributors in the state and protect Kansas businesses from federal enforcement for unknowingly distributing or selling non-compliant products.
Chairperson Carpenter recognized Kari Rinker of Tobacco Free Kansas Coalition as a neutral on HB2801 (Attachment 11). She stated that the Tobacco Free Kansas Coalition does not believe that this bill, which proposes a redundant and unnecessary e-cigarette registry, will reduce youth access and addiction to all harmful tobacco and nicotine products. She further stated that HB2801 merely exists as a mechanism to eliminate competition within the corporate tobacco industry. It creates redundancies with existing state and federal tobacco compliance and control programs, creating significant potential for exploitation by corporate tobacco. Questions were asked by Representatives Eplee and Sanders.
Debbi Beavers, Director, Alcoholic Beverage Control (ABC), testified as a neutral on HB2801 (Attachment 12). She stated that the ABC does not regulate any cigarette, tobacco or vaping products. They are regulated by the Director of Taxation. The way the Department reads the bill, only a handful of e-cigarette products could be sold in Kansas. If this bill passes, more law enforcement officers and office staff would be needed.
Representative Kessler asked that Casey Skidmore, attorney with the Department of Revenue, be allowed to answer some questions. She stated that the Department is neutral on HB2801; however, there are some concerns regarding regulation and enforcement. Her understanding is the FDA is not approving any applications right now. There are only three manufacturers on the list so that would eliminate a substantial amount of products -- roughly 95 percent -- in Kansas, which in turn means Kansans won't be able to do business in the state. If they don't get approved by November 1st, products will be seized. There's an issue with that because they do not have the authority to seize property in Kansas. It is also considered a hazardous material due to the nicotine, and that would cost thousands of dollars to destroy. In addition, there is no mechanism for the Department of Revenue to do that. With the elimination of all the people being able to do business in Kansas, the fees to be able to do business are now cut by 95 percent. They would have to double their staff to enforce the law, and those fees would not be able to cover the enforcement.
(Chairman Carpenter asked Ms. Skidmore to submit written testimony to the committee, but none was submitted by the time of publication of these minutes.)
Chairperson Carpenter recognized Ronald Parisi, who testified in opposition to HB2801 (Attachment 13). He stated he represents the millions of adult smokers across the United States who have successfully transitioned away from traditional tobacco smoking through the use of vaping. If this bill passes, the winners will be big tobacco and combustible cigarettes. It will limit the number of vaping products from three manufacturers, completely removing the freedom of choice to seek safer alternatives to traditional cigarettes.
The Chair recognized Gregory Conley, American Vapor Manufacturers, as an opponent to HB2801 (Attachment 14). He stated that his association opposes HB2801 because it will shut down small businesses and either send Kansas's 180,000 adult vaporers to the illicit market where products are not as safe as those sold in stores or back to deadly traditional combustible cigarettes. There is nothing common sense and simple about banning products that are easily imported from other states or countries that can be sold out of the trunks of cars or on TikTok, which is happening today.
Byron McNary, McVapour LLC testified in opposition to HB2801 (Attachment 15). He stated that if this bill is passed, it will eliminate most, if not all, locally run Kansas-owned vape businesses. The State should not get into addressing and making changes until the FDA has made their final determination.
Chairperson Carpenter stated that there is written opposition testimony from Alli Boughner, American Vapour Manufacturers (Attachment 16); Sara Prem, American Lung Association, Kansas and Greater Kansas City (Attachment 17); and Megan Word, American Cancer Society Cancer Action Network (Attachment 18).
The hearing on HB2801 was closed by the Chairman.
