FDA Issues Official Guidance on New Federal Flavor Ban

E-Cigarettes, FDA, Flavors (including Menthol)

More than three months after President Trump promised a crackdown on flavored tobacco products, a parsed down federal ban, strongly influenced by industry lobbying efforts, was finally issued at the beginning of this year. On January 2, 2020, the United States Federal Drug Administration [FDA] formally released a guidance document detailing enforcement priorities of the new federal rule. After a thirty day sell-off period starting on February 1, 2020, retailers will be prohibited from selling all flavors, other than menthol and tobacco, of cartridge-based electronic nicotine delivery systems (ENDS), defined by the FDA as a product that “consists of, includes, or involves a cartridge or pod that holds liquid that is to be aerosolized through product use” with a cartridge or pod referring to “any small, enclosed unit (sealed or unsealed) designed to fit within or operate as part of an electronic delivery system.”

As written, multiple popular flavored tobacco products, widely used among youth and targeted, vulnerable communities, are exempt from this ban, including self-contained, disposable vaping devices like Suorin and Smok, which, according to the 2019 National Youth Tobacco Survey, are the most popular e-cigarette devices among high school students after Juul. Also missing from the ban are e-liquids designed for customizable, refillable e-cigarette pods, often referred to as ‘tank systems’ or ‘mod systems’, that are most commonly sold in vape shops and come in varying levels of nicotine content, as well as over 15,000 kid-friendly flavors, like ice cream cake and popcorn. Likewise, the ban does not include flavored cigars, menthol or tobacco flavored cartridge-based ENDS, or mentholated cigarettes and other combustible tobacco products.

The ban, as it stands, does little to tackle tobacco-related health inequities or combat youth use. Menthol flavored tobacco products, which provide a cooling sensation that masks the harshness of the tobacco smoke and taste, are linked to higher rates of tobacco use initiation and are disproportionately marketed to, and consequently smoked by, African-Americans, other communities of color, women and youth. In fact, over half of smokers ages 12-17 smoke menthol cigarettes, with this percentage being even higher in African-American youth. Evidence has shown that banning menthol flavored tobacco products would help protect the health of the public; however, the current regulation allows these products to continue to remain on the market.

Allowing flavored disposable vapes and refillable e-cigarette pods to continue to be sold will also hardly hinder youth use. According to the 2019 National Youth Tobacco Survey, nearly 70% of youth who currently used tobacco products reported using at least one flavored product. Evidence also suggests that youth, when restricted from their ‘preferred flavors’, often turn to alternative flavored products, suggesting youth who became addicted through now-banned flavored closed pods like Juul will likely turn to available flavored e-liquids to quell their nicotine addiction. Additionally, the wording of the new regulation leaves the definition of ‘flavored’ ambiguous, opening loopholes for sneaky industry strategies. As discussed in the statement released by the Public Health Law Center, the tobacco industry is already experienced in using these loopholes to their advantage; when the Tobacco Control Act banned the wording ‘light’ on cigarette packaging, the industry color-coded its ‘light’ range and in the past, when local jurisdictions have banned flavors, the industry shifted products with names of flavor profiles, like “mango” or “blueberry”, to concept names like “Pirate’s Cove” and “Blue Mist” to circumvent the policy.

Use of flavored tobacco products by youth and vulnerable populations is a problem already of epidemic proportions. The policy, as currently written, falls short in protecting these groups that have been specifically targeted by Big Tobacco. Various other public health agencies and public interest groups, including the American Academy of Pediatrics, the American Cancer Society Cancer Action Network, the American Lung Association, the Truth Initiative, and the Campaign for Tobacco-Free Kids, have released statements adamantly opposing the scaled back policy. Likewise, we feel the policy falls short in protecting the public from the harmful effects of flavored tobacco products and the strategies Big Tobacco uses to lure vulnerable populations like youth to use these products. While hopefully in the future, the federal ban will be expanded to include all flavored tobacco products, for the time being we encourage states and local jurisdictions to put forth effort and action to enact their own comprehensive bans, removing all flavored tobacco products from retailer shelves.

Learn more from our resources about flavored tobacco products, menthol and policy options to restrict the availability of these harmful flavored tobacco products.

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