S.Amdt. 1239

SA 1239. Mr. ROMNEY submitted an amendment intended to be proposed to
amendment SA 948 proposed by Mr. Shelby to the bill H.R. 3055, making
appropriations for the Departments of Commerce and Justice, Science,
and Related Agencies for the fiscal year ending September 30, 2020, and
for other purposes; which was ordered to lie on the table; as follows:

At the appropriate place in title VII of division B,
insert the following:
Sec. __. (a) Section 907(a) of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 387g(a)) is amended--

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(1) in paragraph (1), by adding at the end the following:
``(C) Special rule for electronic nicotine delivery
systems.--Beginning 90 days after the date of enactment of
the Commerce, Justice, Science, Agriculture, Rural
Development, Food and Drug Administration, Interior,
Environment, Military Construction, Veterans Affairs,
Transportation, and Housing and Urban Development
Appropriations Act, 2020, an electronic nicotine delivery
system or any of its components or parts (including e-liquid)
shall not contain, as a constituent (including a smoke
constituent) or additive, an artificial or natural flavor
(other than tobacco) or an herb or spice, including
strawberry, grape, orange, clove, cinnamon, pineapple,
vanilla, coconut, licorice, cocoa, chocolate, cherry, coffee,
menthol, or mint that is a characterizing flavor of the
electronic nicotine delivery system or e-liquid. Nothing in
this subparagraph shall be construed to limit the Secretary's
authority to take action under this section or other sections
of this Act applicable to any artificial or natural flavor,
herb, or spice not specified in this subparagraph.''; and
(2) by adding at the end the following:
``(7) Electronic nicotine delivery system standards.--Not
later than 1 year after the date of enactment of the
Commerce, Justice, Science, Agriculture, Rural Development,
Food and Drug Administration, Interior, Environment, Military
Construction, Veterans Affairs, Transportation, and Housing
and Urban Development Appropriations Act, 2020, the Secretary
shall promulgate regulations setting forth standards on the
permissible design of electronic nicotine delivery systems,
and issue guidance for manufacturers to implement such
standards. Such standards, at a minimum, shall--
``(A) prohibit refillable components or parts;
``(B) prohibit any electronic nicotine delivery system
designed to look like combustible cigarettes or commonplace,
nonmedical devices, such as pens or USB flash drives; and
``(C) require each electronic nicotine delivery system and
its components and parts to be tamper-proof.''.
(b)(1) Section 900 of the Federal Food, Drug, and Cosmetic
Act (21 U.S.C. 387) is amended--
(A) by redesignating paragraphs (8) through (22) as
paragraphs (10) through (24); and
(B) by inserting after paragraph (7) the following:
``(8) Electronic nicotine delivery system.--
``(A) In general.--The term `electronic nicotine delivery
system'--
``(i) means noncombustible tobacco products, including
vapes, vaporizers, vape pens, hookah pens, electronic
cigarettes (also known as `e-cigarettes' or `e-cigs'), and e-
pipes that deliver an aerosolized e-liquid that may contain
nicotine, as well as varying compositions of flavorings,
propylene glycol, vegetable glycerin, and other ingredients;
and
``(ii) includes components and parts, such as e-liquids,
tanks, cartridges, pods, wicks, and atomizers.
``(B) Components and parts.--The term `components and
parts', with respect to an electronic nicotine delivery
system, means the objects intended or reasonably expected to
be used with, or for, the human consumption of a tobacco
product that are not accessories.
``(9) E-liquid.--The term `e-liquid' means liquid nicotine,
nicotine containing liquids (including liquid nicotine
combined with colorings, flavorings, or other ingredients),
and liquids that do not contain nicotine or other material
made or derived from tobacco, but that are intended or
reasonably expected to be used with or for the human
consumption of a tobacco product.''.
(2) Section 9(1) of the Comprehensive Smokeless Tobacco
Health Education Act of 1986 (15 U.S.C. 4408(1)) is amended
by striking ``section 900(18)'' and inserting ``section
900(20)''.
Sec. __. (a) Not later than 1 year after the date of
enactment of this Act and annually thereafter, the Secretary
of Health and Human Services (referred to in this section as
the ``Secretary''), in consultation with the Director of the
National Institutes of Health, the Commissioner of Food and
Drugs, the Director of the Centers for Disease Control and
Prevention, and other heads of appropriate agencies, as the
Secretary of Health and Human Services determines
appropriate, shall submit to the Committee on Health,
Education, Labor, and Pensions and the Committee on
Appropriations of the Senate and the Committee on Energy and
Commerce and the Committee on Appropriations of the House of
Representatives, and publicly post on an internet website, a
report on the public health risks of tobacco use that
includes--
(1) the public health implications of the use of tobacco
products, with a focus on electronic nicotine delivery
systems and other alternative tobacco products;
(2) emerging trends in tobacco use, including the use of
tobacco flavors and new tobacco products;
(3) updates on the public health awareness campaign
authorized by subsection (b); and
(4) recommendations for Congress.
(b) The Secretary shall conduct a public awareness campaign
to educate the public about the public health implications of
using electronic nicotine delivery systems (as defined in
section 900 of the Federal Food, Drug, and Cosmetic Act (21
U.S.C. 387)).
(c) To carry out subsection (b), for each of fiscal years
2021 through 2024, there shall be transferred to the
Secretary, from the General Fund of the Treasury, the lesser
of--
(1) the amount equal to the amount collected under 5701(h)
of the Internal Revenue Code of 1986 during the previous
fiscal year; or
(2) $115,000,000.
Sec. __. (a) Section 5701 of the Internal Revenue Code of
1986 is amended--
(1) by redesignating subsection (h) as subsection (i), and
(2) by inserting after subsection (g) the following new
subsection:
``(h) Electronic Nicotine Delivery.--
``(1) Electronic nicotine delivery systems.--
``(A) In general.--On electronic nicotine delivery systems
(as defined in section 900(8) of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 387(8))), manufactured in or imported
into the United States, there shall be imposed a tax equal to
$1.01 per electronic nicotine delivery system.
``(B) Exception.--This paragraph shall not apply to any
single-use electronic nicotine delivery system.
``(2) E-liquid.--On e-liquids (as defined in section 900(9)
of such Act) or single-use electronic nicotine delivery
systems, manufactured in or imported into the United States,
there shall be imposed a tax equal to--
``(A) in the case of a product which contains less than 5
percent nicotine by volume, $1.01, and
``(B) in the case of the product which contains a
percentage of nicotine by volume which is equal to or greater
than 5 percent, an amount equal to the sum of--
``(i) $1.01, plus,
``(ii) for each percentage point of nicotine by volume
contained in such product which is in excess of 5 percent,
20.2 cents (and a proportionate amount at the like rate on
any such percentage which is not a whole number).''.
(b) Section 5702 of the Internal Revenue Code of 1986 is
amended--
(1) in subsection (c), by striking ``and roll-your-own
tobacco'' and inserting ``roll-your-own tobacco, electronic
nicotine delivery systems, and e-liquids'', and
(2) in subsection (d), by striking ``or roll-your-own
tobacco'' each place it appears and inserting ``roll-your-own
tobacco, electronic nicotine delivery systems, and e-
liquids''.
(c) The amendments made by this section shall apply to
articles removed after the date which is 90 days after the
date of enactment of this Act.
Sec. __. (a) Any person who--
(1) on the date of the enactment of this Act, is engaged in
business as a manufacturer of electronic nicotine delivery
systems or e-liquids, and
(2) before the applicable date, submits an application
under subchapter B of chapter 52 of the Internal Revenue Code
of 1986 to engage in such business,
may, notwithstanding such subchapter B, continue to engage in
such business pending final action on such application.
Pending such final action, all provisions of chapter 52 of
such Code shall apply to such applicant in the same manner
and to the same extent as if such applicant were a holder of
a permit to manufacture electronic nicotine delivery systems
or e-liquids under such chapter 52.
(b)(1) On electronic nicotine delivery systems or e-liquids
manufactured in or imported into the United States which are
removed before the applicable date and held on such date for
sale by any person, there is hereby imposed a tax in an
amount equal to the tax which would be imposed under section
5701 of the Internal Revenue Code of 1986 on the article if
the article had been removed on such applicable date.
(2)(A) A person holding electronic nicotine delivery
systems or e-liquids on the applicable date to which any tax
imposed by paragraph (1) applies shall be liable for such
tax.
(B) The tax imposed by paragraph (1) shall be paid in such
manner as the Secretary shall prescribe by regulations.
(C) The tax imposed by paragraph (1) shall be paid on or
before the date that is 120 days after the applicable date.
(3) Notwithstanding the Act of June 18, 1934 (commonly
known as the Foreign Trade Zone Act, 48 Stat. 998, 19 U.S.C.
81a et seq.), or any other provision of law, any article
which is located in a foreign trade zone on any tax increase
date shall be subject to the tax imposed by paragraph (1)
if--
(A) internal revenue taxes have been determined, or customs
duties liquidated, with respect to such article before such
date pursuant to a request made under the 1st proviso of
section 3(a) of such Act, or
(B) such article is held on such date under the supervision
of an officer of the United States Customs and Border
Protection of the Department of Homeland Security pursuant to
the 2d proviso of such section 3(a).
(4) Rules similar to the rules of section 5061(e)(3) of the
Internal Revenue Code of 1986 shall apply for purposes of
this subsection.
(5) All provisions of law, including penalties, applicable
with respect to the taxes imposed by section 5701 of the
Internal Revenue Code of 1986 shall, insofar as applicable
and not inconsistent with the provisions of this subsection,
apply to the floor stocks taxes imposed by paragraph (1), to
the same extent as if such taxes were imposed by such section
5701. The Secretary may treat any person who bore the
ultimate burden of the tax imposed by paragraph (1) as the
person

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to whom a credit or refund under such provisions may be
allowed or made.
(c) For purposes of this section--
(1) Any term used in this section which is also used in
section 5701 or 5702 of the Internal Revenue Code of 1986
shall have the same meaning as such term has in such section.
(2) The term ``applicable date'' means the day after the
date which is 90 days after the date of enactment of this
Act.
(3) The term ``Secretary'' means the Secretary of the
Treasury or the Secretary's delegate.
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