Lawmaker seeks Nebraska registry of authorized vape products, crackdown on sales

LINCOLN — Nebraska is poised to create its own registry of authorized vapes in the state instead of relying on a federal list maintained by the U.S. Food and Drug Administration.

State Sen. Jana Hughes of Seward. Jan. 4, 2023. (Zach Wendling/Nebraska News Service)

State Sen. Jana Hughes of Seward offered a successful bill last year that implemented a 5-cent-per-militer excise tax on disposable vape liquids and a 10% wholesale tax on other electronic nicotine products beginning Jan. 1. She returned this year with Legislative Bill 1296, to regulate vaping products. She is also seeking to increase the tax on wholesale products to 20%.

Earlier this month, lawmakers advanced LB 1296 by attaching it to LB 1204 — a General Affairs Committee priority bill — and advanced the package again Friday. It is awaiting one final round of debate.

“We are not eliminating vape,” Hughes told the Nebraska Examiner.

Hughes explained that in the United States, there’s a perception that products sold in retail outlets are safe. However, she said, the federal government, which is supposed to be in charge of product regulation and safety, has dropped the ball.

“If they get their stuff together … then we’re done,” Hughes said of her bill. “But they’re not doing it.”

‘Brand-new territory’

Nebraska Attorney General Mike Hilgers. June 30, 2023. (Zach Wendling/Nebraska Examiner)

With the help of Attorney General Mike Hilgers and his office, Hughes sought to limit the number of products available in Nebraska to a handful that have been approved by the FDA but ran into a “hot mess” because that delineation is being challenged in court.

Hughes has amended her legislation in part with the help of “reputable” vape shops and would have manufacturers list their chemicals, allowing easier regulation and seizure, if needed. The senator said this could also prevent imports of products from out of the country.

Her proposal is not meant to be a moneymaker or a money sucker, she said, but to create an even “wash” between fees assessed on the vape industry and oversight costs.

“But that’s the hard part: This is brand-new territory,” Hughes said.

An application for a certification under her bill would cost $75 for each type or model of electronic nicotine delivery system sold in Nebraska, instead of $250 per system. Lawmakers may need to extend debate one more time if the fiscal estimate isn’t a “wash,” Hughes noted.

Crackdown of advertising, online sales

Hughes’ bill would also end all mail or delivery of vapes through online or telephone purchases, requiring in-person pickup.

The bill also has provisions meant to crack down on advertising targeted at minors, outlawing ads or packaging that:

  • Depict a cartoon-like fictional character that mimics a character primarily aimed at entertaining minors.
  • Imitate or mimic trademarks or trade dress of products that are or have been primarily marketed to minors.
  • Include a symbol primarily used to market products to minors.
  • Includes an image of a celebrity.
An electronic nicotine delivery system, or vape, that York Elementary School officials confiscated from a third grader. A legislative bill would outlaw products that are disguised to be non-vape merchandise. (Courtesy of State Sen. Jana Hughes of Seward)

Hughes shared an image with the Examiner of a vape device being used by a 9-year-old, according to a school official in York, which is in Hughes’ legislative district. The legislation would outlaw vapes that are designed to disguise their purpose, such as by mimicking highlighters or pens.

‘Rickhouses’ and lottery prizes

The General Affairs Committee package also includes proposals seeking to:

  • Define a “rickhouse” in state law as an offsite bonded warehouse kept and maintained for the purpose of storing spirits in barrels for aging in order to impart flavor from the barrel into the spirits (from State Sen. John Cavanaugh of Omaha in LB 1204 originally).
  • Allow winners of a lottery prize greater than $250,000 the option to remain anonymous (from State Sen. Tom Brandt of Plymouth in LB 1000). Currently, the names of these winners can be disclosed through public records requests.

LB 1204 advanced by voice vote to one final round of debate, expected later this session.


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