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`Benjamin Levi
`202.997.3711
`blevi@levisnotherly.com
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`April 27, 2020
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`VIA EDIS
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`The Honorable Lisa R. Barton
`Secretary to the Commission
`U.S. International Trade Commission
`500 E Street, SW, Room 112
`Washington, DC 20436
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`Re: Certain Tobacco Heating Articles and Components Thereof,
`Dkt. No. 337-3447
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`Dear Secretary Barton:
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`On Thursday, April 23, 2020, Latham and Watkins LLP (“Latham”) filed timely
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`comments to Complainants’ Public Interest Statement in the above-referenced matter on
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`behalf of the American Vaping Association (“AVA”). Latham had full permission to do so
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`and submitted the filing as a courtesy to AVA.
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`On Friday, April 24, 2020, the ITC’s docketing team rejected the filing because a
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`law firm may not file a document on behalf of a person or entity that it does not formally
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`represent. Neither Latham nor AVA received notice of this issue in time to address the
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`concern.
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`The undersigned represents AVA for purposes of perfecting the filing of its public
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`interest comments. AVA respectfully submits that there is good cause for the Commission
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`to accept and consider its public interest filing out of time. The filing, in fact, was made
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`The Honorable Lisa R. Barton
`April 27, 2020
`Page 2
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`in a timely fashion but was rejected based on a technical imperfection in the manner of
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`its filing. Moreover, given the statutory provisions and Commission rules governing
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`consideration of the public interest, it is important that the Commission consider to the
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`greatest extent possible all such submissions. Finally, neither the Commission Staff nor
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`Complainants will be prejudiced by acceptance of the filing at this time, given that it was
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`served on the Commission Staff and Complainants on the day it was originally filed.
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`For the foregoing reasons, AVA respectfully requests that the Commission accept
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`and consider its public interest submission out of time.
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`Sincerely,
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`/s/ Benjamin Levi
`____________
`Benjamin Levi
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`Levi & Snotherly, PLLC 1101 Connecticut Ave., N.W., Suite 450
`Washington, DC 20036
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`UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, DC
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`In the Matter of
`CERTAIN TOBACCO HEATING
`ARTICLES AND COMPONENTS
`THEREOF
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` Investigation No. 337-TA-3447
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`PUBLIC INTEREST COMMENTS OF THE AMERICAN VAPING ASSOCIATION
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`The American Vaping Association (AVA) files these comments to the Public Interest
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`Statement submitted by Complainants in the above-referenced matter on April 9, 2020. AVA is
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`not interested in weighing in related to the merits of the case, which we leave for ITC and other
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`bodies to decide. We do, however, want to highlight the potential adverse impact the requested
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`exclusion of IQOS might cause, including harming the public health and welfare of U.S.
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`consumers and stifling incentives to innovate to move consumers away from traditional
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`cigarettes.
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`Background
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`The American Vaping Association is a nonprofit advocacy group that champions the use
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`of vaping products and electronic cigarettes to help smokers quit. We advocate for fair and
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`sensible regulation of vaping products with the goal of maximizing the number of adult smokers
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`who use these products to quit smoking. We are dedicated to educating the public and
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`government officials about the public health benefits offered by vapor products. AVA is not a
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`trade association and does not speak for any particular businesses. As we are an important voice
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`in the vaping community, which includes users of heated tobacco products such as IQOS, we
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`believe we are well positioned to comment in the above reference matter.
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`IQOS Provides Promise to U.S. Consumers
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`Despite years of public health campaigns and harsh regulatory edicts, 34 million
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`American adults still smoke combustible cigarettes, with the majority reporting that they want to
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`quit. Unfortunately, studies continue to show that while many smokers do make quit attempts,
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`the majority of those who attempt to quit smoking will not succeed long-term. Fortunately for
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`public health, over the last three decades there has been volumes of research published showing
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`that while smokers smoke for the nicotine, they actually suffer diseases and die because of the
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`1
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`smoke, not the nicotine.
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`This science has formed the basis for the concept of tobacco harm reduction (THR).
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`Since smoking cigarettes is undoubtedly the worst way to consume nicotine, THR proponents
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`advocate for providing smokers with access to products that give adults the nicotine they want
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`without the smoke and sky-high levels of toxic chemicals produced by combustible cigarettes.
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`The fact that smokers smoke for the nicotine but die from the chemical compounds in tobacco
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`smoke has been endorsed by well-respected organizations across the globe, including the U.S.
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`Food & Drug Administration and the United Kingdom’s Royal of College of Physicians.
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`We have learned over time that no product is perfect, with many smokers finding it
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`difficult to switch to traditional nicotine replacement therapy products or new technologies such
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`as electronic cigarettes. Even among those who successfully switch to products like electronic
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`cigarettes, consumers often must use multiple flavors and/or devices before finding something
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`that works for them.1 As a result, AVA believes it is important to have a variety of alternatives to
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`cigarettes for consumers so that we can continue to bring down the number of smokers in the
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`U.S. today. This includes heated tobacco products like IQOS.
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`As we noted in our press release when IQOS was approved, IQOS is not a traditional
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`vaping product. Whereas electronic cigarettes heat a liquid solution in order to produce a vapor,
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`IQOS heats real tobacco to temperatures much lower than a traditional cigarette. The products
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`are radically different in taste and user experience, but they align in the most important factors
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`for public health -- nothing actually burns when using either products, which results in users
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`being exposed to far fewer chemicals as compared to traditional cigarettes.
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`1 See e.g., Jones DM, Ashley DL, Weaver SR, et. al. Flavored ENDS Use among Adults Who Have Used Cigarettes
`and ENDS, 2016-2017. Tob Regul Sci. 2019;5(6):518–531. doi:10.18001/TRS.5.6.4 (finding that adults who report
`use of multiple flavors in electronic cigarettes were more likely to have quit smoking)
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`In 2019, after a multi-year, robust evaluation as part of the Pre-Market Tobacco
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`Application (“PMTA”) process, FDA authorized IQOS for sale in the United States. FDA’s
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`marketing order noting the following:
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`(cid:120) For those who switch completely to IQOS, the reduction in exposure to certain chemicals
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`likely will result in reduced health risk.
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`(cid:120) There was reduced chemical exposure to those experiencing IQOS aerosol secondarily as
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`compared to secondary smoke from traditional cigarettes.
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`(cid:120) Available data shows that there is low uptake of IQOS by non-tobacco users, including
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`youth. One study relied on by the FDA showed that less than 1% of youth had ever tried
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`IQOS.
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`Thus far, IQOS is the only heated tobacco product to receive a marketing order through
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`the FDA’s PMTA process. While there is not yet ample U.S. specific data on IQOS use because
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`the product has only been available or a limited period of time, data from across the world
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`indicates that IQOS has helped switch many adults away from deadly combustible cigarettes.
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`Indeed, researchers from the American Cancer Society found that after IQOS was introduced in
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`Japan, declines in cigarette sales quintupled from 2% per year in 2011 to 10% from 2015 through
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`2018.2 This is clearly a positive for public health.
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`A removal of IQOS from the U.S. market will represent a major blow to public health
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`and the well-documented public interest in seeing cigarette smoking decline. The FDA itself has
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`recognized that IQOS is “appropriate for the protection of public health.” Without IQOS, the
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`number of heated tobacco products legally available to the U.S. adult smokers will decline from
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`2 Stoklosa M, Cahn Z, Liber A, et al. Effect of IQOS introduction on cigarette sales: evidence of decline and
`replacement. Tob. Control. Published Online First: 17 June 2019. doi: 10.1136/tobaccocontrol-2019-054998
`3
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`one to zero. While electronic cigarettes will remain available to smokers, heated tobacco
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`products and electronic cigarettes are in no way interchangeable.
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`Even if other competitors in the heated tobacco product market received marketing
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`authorizations tomorrow – something that is not expected to occur – we would still oppose
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`IQOS’ removal from the market. When you are fighting to stop over 400,000 people from dying
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`each year from traditional cigarettes, the public deserves access to all the tools in the toolbox. In
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`my own personal experience as someone who has trialed different heated tobacco products, some
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`products are more satisfying (and thus more likely to lead an adult smoker to completely switch)
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`than others. As THR products become more technology-based, patent lawsuits will only
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`increase, and allowing one competitor to force another off the market will set a terrible precedent
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`that will result in more cigarette smoking and the accompanying death and disease.
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`The American Vaping Association appreciates the chance to share its views on the
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`potential negative consequences the exclusion of IQOS could have on public health and welfare
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`and reduced risk product innovations in the U.S. market. We hope the ITC will include these
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`views in its public interest analysis..
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` Dated: April 22, 2020
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`Respectfully submitted,
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`____________________________________
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`Gregory Conley
`President – American Vaping Association
`231 Church Road
`Medford, NJ 08055
`(609) 947 – 8059
`gconley@vaping.org
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`4
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`CERTIFICATE OF SERVICE
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`It is hereby certified that copies of THIRD PARTY PUBLIC INTEREST COMMENTS
`were served on April 27, 2020 as follows:
`
`337-TA-3447
`
`The Honorable Lisa R. Barton
`Secretary to the Commission
`U.S. International Trade Commission
`500 E Street, SW, Room 112
`Washington, DC 20436
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`By EDIS
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`David M. Maiorana
`Ryan B. McCrum
`JONES DAY
`901 Lakeside Avenue
`Cleveland, OH 44114
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`Stephanie E. Parker
`JONES DAY
`1420 Peachtree Street, N.E.
`Suite 800
`Atlanta, GA 30309
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`Holdings, Inc., R.J. Reynolds Vapor Company, and
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`Anthony M. Insogna
`JONES DAY
`4655 Executive Drive
`Suite 1500
`San Diego, CA 92121
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`John J. Normile
`JONES DAY
`250 Vesey Street
`New York, NY 10281
`Tel: (212) 326-3939
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`On Behalf of Complainants RAI Strategic
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`R.J. Reynolds Tobacco Company
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`By Email
`dmaiorana@jonesday.com
`rbmccrum@jonesday.com
`separker@jonesday.com
`aminsogna@jonesday.com
`jjnormile@jonesday.com
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`/s/ Benjamin Levi
`Benjamin Levi
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