Federal and State Action on Flavored E-Cigarettes

On September 11, 2019, the White House announced that the federal government will remove flavored e-cigarettes from the market. For this to happen, the FDA must still issue a final rule, which must be enforceable and stand up to any industry challenges. It has been over 6 months since the FDA issued a draft compliance policy for flavored e-cigarettes and cigars. As stated in a letter to President Trump from Counter Tools and 55 other organizations, we “commend and fully support your plan to remove all non-tobacco flavored e-cigarettes from the market, including mint and menthol flavors. If this plan is swiftly and fully implemented, it will play a critical role in reversing the youth e-cigarette epidemic.” The White House’s announcement is in part a response to initial 2019 data from the National Youth Tobacco Survey, which show that youth use of e-cigarettes is only continuing to increase, with 27.5% of high school students reporting current use of e-cigarettes and most reporting use of flavored products.

While we await a finalized rule and an implementation plan from the FDA, states have been taking similar actions on their own. Read more about the different approaches taken in places like Michigan, New York, California, Massachusetts, Washington, and Rhode Island. In addition, Army and Airforce bases are pulling e-cigarette products from the shelves of on-base stores. Walmart has also announced it will stop selling e-cigarettes, following Rite-Aid’s move earlier this year. Note: Pharmacies and retailers with pharmacy counters could instead follow CVS’s lead and eliminate the sale of all tobacco products entirely – including combustible products, which are the number one cause of preventable death and disease in the country. As we’ve noted before, state and local governments also don’t have to wait for voluntary corporate action.

Vaping-Related Illnesses

The recent vaping illnesses and deaths have been linked primary to e-cigarettes with THC-containing products; however, these products only account for about three-quarters of illnesses. You can find updated information on the outbreak from the CDC here. These tragic and seemingly mysterious illnesses point to the fact that e-cigarettes and their contents are still largely unregulated and have not been authorized or approved by the FDA. E-cigarettes that were on the market on or before August 2016 still don’t have to undergo review by the FDA until May 2020. Learn more about pre-market review in this fact sheet from the Public Health Law Center and see the FDA’s proposed rule for premarket tobacco applications here.

Action Still Needed on Menthol Cigarettes & Other Flavored Tobacco Products

While flavored e-cigarettes are capturing the nation’s attention, it is important not to forget about the flavored combustible products that remain on the market – menthol cigarettes and flavored cigars. While science on the long-term health impacts of e-cigarettes is still emerging, the science on these products is clear. Combustible tobacco products remain the number one cause of preventable death and disease across the country. There is a mountain of evidence showing that removing menthol cigarettes from the marketplace would benefit public health and health equity.

While the FDA has proposed action on these products as well, we are not seeing it move forward with the same speed as action on flavored e-cigarettes. Thankfully, state and local governments continue to move forward in lieu of federal action. For example, Los Angeles County recently passed a comprehensive ban on the sale of flavored tobacco products, including menthol cigarettes and flavored e-cigarettes, and a bill was introduced at the state level in Maryland to ban the sale of all flavored tobacco products. Other localities like Boston that have previously implemented restrictions on the sale of flavored tobacco products are expanding them to now include menthol cigarettes.