Restricting Flavored Tobacco Sales

The 2009 Family Smoking and Tobacco Prevention Act banned the sale of cigarettes with “characterizing” flavors other than menthol or tobacco. However, other flavored tobacco products have remained on the market and become much more prevalent in the years since. These products include flavored smokeless tobacco, little cigars and cigarillos, large cigars, e-cigarettes, hookah, and oral nicotine products (e.g. pouches), in addition to menthol cigarettes, and are sold in an array of flavors that range from fruit flavors to candy or confectionery flavors, to alcoholic beverage to herbs and spices.

While the movement to ban the sale of flavored tobacco products beyond flavored cigarettes started with incremental change, as jurisdictions prohibited where flavored products could be sold by store type (e.g. only in age-restricted stores), store location (e.g. not at stores near schools), or prohibited only certain flavored tobacco products (e.g. only flavored cigars, only flavored e-cigarettes, and often exempting menthol cigarettes), comprehensive restrictions that prohibit the sale of all flavored tobacco products without exemption is the gold standard.

What’s on this page? 

Policies to Ban the Sale of Flavored Tobacco Products 

Federal

The FDA’s 2016 “Deeming” regulations brought all tobacco products under FDA regulatory authority – including e-cigarettes, all cigars, hookah, and any novel or future tobacco products. In August 2017, the FDA announced their intention to issue another advance notice of proposed rule-making (ANPRM) to seek public comment on the role that flavors in tobacco products—including menthol—play in attracting youth, as well as the role they may play in helping some people who smoke switch to potentially less harmful forms of nicotine delivery. The agency officially issued the ANPRM on the regulation of flavored tobacco products on March 20th, 2018, and in November 2018, announced their next steps on flavored tobacco products, including their intention to: issue a product standard that would ban flavors in all cigars; issue a notice of proposed rulemaking that would ban menthol cigarettes, cigars, and any other combustible products; and restrict the sale of flavored e-cigarettes (other than tobacco, mint, or menthol flavor) to age-restricted retail locations.

Menthol cigarettes and flavored cigars: Menthol makes tobacco products easier to start, harder to quit, and tobacco companies have targeted its marketing to African Americans and other marginalized groups across the country for decades, contributing to disparities in tobacco product use and subsequent harm (learn more here).

When the 2009 Family Smoking Prevention and Tobacco Control Act banned flavored cigarettes, it also instituted a tax on small cigars. To circumvent this tax, the tobacco industry subsequently slightly increased the weight of their cigars to be able to classify them as “large cigars” under Tobacco Control Act. However, these cigars are nearly identical to cigarettes, yet still allowed to be flavored. While cigarette sales have been declining, cigars have been on the rise in the US since 2000, driven in part by the proliferation of flavored LCCs. [25].  Learn more about this trend in Campaign for Tobacco Free Kids’ 2023 updated report “Not Your Grandfather’s Cigar.”

On April 28, 2022, the FDA announced a proposed rule to prohibit menthol as a characterizing flavor in cigarettes, as well as prohibit menthol and all other characterizing flavors in cigars. After a public comment period as well as listening sessions, the final rule was sent to the White House for review in October 2023. However, in April 2024, the Biden Administration announced they were delaying implementation of the rules indefinitely.

While these proposed rules would be a major step forward for public health, health equity, and the commercial tobacco endgame, the processes for finalizing and implementing these rules could take years, especially with delays from likely tobacco industry litigation. State and local action to prohibit the sale of menthol cigarettes and all other tobacco products remains critical and can save lives and prevent addiction now.

E-cigarettes: In response to rising levels of youth e-cigarette use, on September 11, 2019, the federal administration announced a future ban on the sale of flavored e-cigarettes, but final guidance from the FDA, issued January 2, 2020, only prohibits the sale of flavored cartridge-based (closed system) e-cigarette products other than menthol or tobacco flavor.

With products like flavored disposable e-cigarettes left on the market, data from the Truth Initiative shows youth are switching from products like JUUL to products like Puff Bar and Smok. Between 2019 and 2020, the market share of disposable e-cigarette product like Puff Bar increased from 11% to nearly 25%, and as of 2021, Puff Bar had become the most popular e-cigarette product among youth. It’s also clear that youth will use any flavor that is left on the market. As mint flavors in pod or cartridge-based e-cigarettes were prohibited, youth shifted to using menthol flavors, with the market share of menthol-flavored e-cigarettes increasing from 13% to 46% from 2019 to 2020.

While many public health groups are advocating for the agency not to authorize the marketing of any flavored e-cigarettes, it seems the agency is giving special consideration to menthol e-cigarettes, and in June 2024 authorized the sale of four menthol-flavored e-cigarette products. Some researchers advocate for leaving some limited flavors of e-cigarettes with only adult-oriented marketing on the market in order to increase the appeal of e-cigarettes to adults who want to quit smoking, while also limiting where and how e-cigarettes can be sold to further restrict youth access.[76]  In their press release about the authorization, the FDA noted, “…evidence submitted by the applicant showed that these menthol-flavored products provided a benefit for adults who smoke cigarettes relative to that of the applicant’s previously authorized tobacco-flavored products—in terms of complete switching—that is sufficient to outweigh the risks of the product, including youth appeal…” However, menthol-flavored e-cigarettes remain fairly popular among youth. According to the 2023 National Youth Tobacco Survey, 23.3% of high school students who use e-cigarettes use menthol flavors. 

Learn more about e-cigarettes at the point of sale.

State

In November 2019, Massachusetts became the first state to prohibit the sale of all flavored tobacco products, including menthol cigarettes and flavored e-cigarettes. The only exception to the law is that flavored tobacco products can still be sold at licensed smoking bars such as cigar bars and hookah lounges, though consumption must occur on-site. Extending the ban to menthol cigarettes is particularly monumental as these products have generally been exempt from past restrictions and are disproportionately smoked by youth and minority populations, in part due to targeted industry marketing of menthol to these specific populations. The law went into effect in June 2020.

In August 2020, California passed a law prohibiting the sale of most flavored tobacco products, making it the second state to prohibit the sale of menthol cigarettes and the fourth to prohibit the sale of flavored e-cigarettes. The only products exempt from the policy are loose leaf tobacco, “premium” cigars, and hookah tobacco. After the tobacco industry forced the policy to a referendum vote, in November 2022, California voters upheld ban over 63% of the vote, and the policy has since withstood all other industry challenges and was implemented in December 2022. 

Other state policies have been limited to specific products. Maine banned flavored cigars in 2009, and more recently, a number of states have banned or restricted the sale of flavored e-cigarettes:

  • New Jersey, and Rhode Island have both banned the sale of all flavored e-cigarettes.
  • New York has banned the sale of all flavored e-cigarettes except those that are approved through the FDA’s premarket review process.
  • Maryland has banned the sale of all flavored cartridge-based and disposable e-cigarettes (except menthol flavor)
  • Utah has restricted the sale of flavored e-cigarettes, other than mint and menthol, to tobacco specialty businesses.

Local

As of December 2023, at least 375 local jurisdictions across the country have implemented regulations that restrict the sale of flavored tobacco products, of which at least 190 include a ban on the sale of menthol cigarettes. For examples and a current list of jurisdictions with flavored tobacco sales restrictions or ban in place see: 

Some jurisdictions have also passed policies that indirectly reduce the availability of flavored tobacco products. For example, minimum price laws or minimum pack size requirements for little cigars and cigarillos (LCCs) can also limit access to flavored tobacco products. While these laws do not specifically pertain to flavored products, they disproportionately affect flavored products like LCCs.In 2011, Boston implemented a cigar packaging and pricing regulation that required single cigars to cost more than $2.50, a package of two cigars to cost more than $5.00, and a package of three cigars to cost more than $7.50. Otherwise, the regulation stipulated that cigars must be sold in packages of at least four. As a result, research showed that both sales and retail availability of single grape-flavored Dutch Masters cigars (which are popular with youth) decreased. Between 2011 and 2014, the percentage of Boston retailers selling grape Dutch Masters single cigars decreased by 34.5%. Additionally, the number of neighborhoods with 3 or more retailers selling these cigars per 100 youth residents decreased from 12 stores to 3, reducing neighborhood-level disparities in retail availability. [31]

Implementation and Enforcement  

Interviews with health department staff, researchers, legal professionals, and local government officials point towards some key best practices for adopting, implementing, and enforcing bans or restrictions on the sale of flavored tobacco products, including: 

  • using comprehensive policy language, including menthol 
  • identifying enforcement agents with sufficient capacity 
  • setting clear enforcement procedures, including for concept flavors  
  • implementing the policy through licensing with the potential for fines as well as license suspensions and revocations for violations 
  • examining potential economic and financial considerations 
  • deploying media campaigns to raise community awareness 
  • engaging community partners, including community members, priority populations, and youth
  • engaging retailers as partners 
  • provide retailers with effective education, ideally through one-on-one outreach 
  • collecting baseline data to be able to demonstrate the impact of the policy, including disaggregated demographic data and data examining menthol separately from other flavors 

See more in Public Health Law Center’s Flavored Tobacco Toolkit: Lessons Learned about Implementation of Flavored Policies, including: 

Concept Flavors

The tobacco industry also has a history of using colors on packaging to signify differences between products. When the 2009 Tobacco Control Act prohibited the use of modified risk health descriptors such as “light,” “mild,’ or low tar in cigarettes, Marlboro circumvented the rule by changing the names of their “Marlboro Light” cigarettes to “Marlboro Gold,” while “Marlboro Ultra Lights” became “Marlboro Silver” and “Marlboro Mild” was renamed “Marlboro Blue”. [26] Many LCCs on the market sold alongside other flavors are labeled simple with a color (i.e. ‘Green” “Blue” “Black” “Silver” as seen in the photo at right). Researchers tracked cigar sales between 2008 and 2014 by flavor categories and found that flavored cigars accounted for over half of cigar sales. [27] However, the number of fruit flavors is declining, while “other” flavors sometimes called “concept” or “ambiguous” flavors (e.g. “Jazz,” “Golden,” and “Royale”) are on the rise, which the authors suggest may be part of a tobacco industry attempt to avoid characterizing flavor descriptors in the case of a ban on flavored cigars.[28] These products have been described by people who use them as flavored. [29]  In addition, an analysis of 16 tobacco products purchased in NYC in 2015 that did not have explicit flavor names (but were labeled with descriptors such as “blue” or “royale”) found that 14 out of the 16 had flavor chemical levels higher than products labeled with a flavor (such as “peach” or “grape”).[29]The researchers concluded that the tobacco industry has renamed flavored products to avoid identifying them as such. They also suggest that the FDA could require that all tobacco products indicate when flavorings are present above a set level, which local jurisdictions could then use to enforce sales restrictions on flavored tobacco products. This may be an important step to take, as an evaluation of Providence, RI’s restriction on the sale of flavored non-cigarette tobacco products showed that while sales of cigars with explicit flavor names decreased by 93% between 2012 and 2016 within the city, sales of cigars labeled with concept flavors rose by 74%.[30] 

Now e-cigarette companies are following the same old Big Tobacco playbook to try to get around the restrictions any way they can, including by using vague “concept flavors” like “Solar” and “Marigold.” Some researchers have argued for specifically banning flavors with high toxicity as well as flavors with youth appeal.[62]

“Non-Menthol” Menthol and Synthetic Cooling Agents

In response to California and Massachusetts’ statewide bans on the sale of flavored tobacco products, including menthol cigarettes, RJ Reynolds debuted new “cool” and “crisp” cigarettes that use a synthetic coolant instead of menthol in anticipation of a federal ban on menthol cigarettes. In light of this industry tactic, the Public Health Law Center also updated its definition of flavored tobacco to specify that flavor includes sensation. Read their commentary and updated definition here as well as information on how the California Attorney General has responded to RJ Reynolds “presumptively flavored” products with notices of determination and the ongoing case in their article Sensing Flavor: R.J. Reynolds’s latest efforts to undermine California’s flavored tobacco policy. 

Cigarettes are not the only products using synthetic cooling agents – research shows many e-cigarettes contain them as well. And similar to how menthol is used in almost all cigarettes at some level, synthetic coolants are also present in e-cigarettes that are fruity or candy-flavored as well as mint or menthol-flavored e-cigarettes.  

Jurisdictions can adopt more comprehensive language going forward to clearly prohibit these type of cooling agents as flavorings as well.

The evidence for restricting the sale of flavored tobacco products

Ontario, Canada implemented a ban on menthol cigarettes on January 1, 2017. One month after the ban took effect, 29.1% of menthol smokers had attempted to quit, a larger proportion than the 14.5% who previously said they would quit. [14] Of menthol smokers who made a quit attempt, 80% reported that the menthol ban affected their decision at least a little. [14]  A larger proportion of menthol smokers (29.1%) also reported using other flavored tobacco or e-cigarette products compared with the 5.8% who had said they would do so before the ban.[14] While menthol cigarettes only make up 5% of cigarette sales in Canada, this study indicates that a menthol ban may encourage both cessation and also product switching if other flavored products are not also restricted. In fact, a 2023 published study, researchers simulated the public health impact of U.S. menthol ban and found with a ban, overall smoking would decline by 15% by 2026, and by 2060, smoking and vaping-attributable deaths would decline by 5% and life-years lost by 8.8%.[34]

Youth Initiation

Evidence has shown that restricting the sale of flavored tobacco products can reduce youth tobacco use.  The 2009 federal ban on flavored cigarettes (other than menthol) was associated with a 17% reduction in the probability of middle and high school youth becoming smokers and a 58% reduction in cigarettes smoked by youth who smoke. However, the ban was also associated with an increase 45% increase in use of menthol cigarettes, a 34% increase in use of cigars, and a 55% increase in use of pipes, indicating that youth may be substituting menthol cigarettes and other flavored tobacco products in place of flavored cigarettes.  Overall, the probability of youth using any form of tobacco dropped by 6% following the ban on flavored cigarettes, showing the impact that restrictions on flavored tobacco products can have. However, the increases in use of other products that are commonly flavored is concerning and points towards the potential impact that more comprehensive restrictions on menthol cigarettes and all flavored other tobacco product could have on youth tobacco use.[1]

We have also seen the impact on a local level in New York City. After New York City restricted sales of flavored tobacco products (excluding e-cigarettes and menthol cigarettes) in November 2010, the sale of all flavored products declined by 87%. [12]  In addition, the percent of New York City teens who reported ever use of flavored tobacco products or use of any tobacco products declined significantly (37% lower odds of ever trying flavored tobacco products and 28% lower odds of using any type of tobacco product) after the policy was implemented. [12]   

An evaluation of Providence, Rhode Island’s 2012  tobacco policies that restricted the sale of flavored tobacco products (except menthol) to tobacco bars and restricted price discounting and multi-pack offers for tobacco products found them to be effective, with a reduction in high school students’ use of any tobacco products from 22.2% to 12.1% and current use of e-cigarettes from 13.3% to 6.6% following two years of rigorous enforcement of the policy. [34]

Youth e-cigarette product use has also been shown to be responsive to regulation of flavors. Many youth have pivoted from using pre-filled pods and cartridges like Juul, which were banned in flavors other than menthol and tobacco at the beginning of 2020, to using disposable e-cigarettes, which are still available in a variety of flavors. In fact, rates of disposable e-cigarette use among high school students skyrocketed from 2.4% in 2019 to 26.5% in 2020. By 2021, disposables were the most popular type of e-cigarettes. Learn more about policy options for restricting the sale of flavored e-cigarettes.

Menthol cigarettes are also linked to higher rates of tobacco use initiation.[4] The cooling sensation helps mask the harshness of the smoke and tobacco taste. It can also cause users to inhale more deeply and become more dependent on nicotine as they inhale more of it, making it harder for users to quit.[5,6] In addition, according to a Tobacco Products Scientific Advisory Committee report on menthol, the “distinct sensory characteristics of menthol may enhance the addictiveness of menthol cigarettes.” Thanks to industry targeting, the disproportionate use of menthol also starts with youth, with 7 out of 10 African American youth who smoke using menthol cigarettes. [13] Flavors like menthol may also contribute to initiation by making a product seem less harmful to adolescents.[17]

Initiation with flavored tobacco products, especially menthol, is especially concerning because young people who initiate smoking with menthol cigarettes are 80% more likely to become regular smokers and 25% more likely to become dependent on nicotine than young people who initiate smoking with non-menthol cigarettes.[18]

Health Equity

Menthol not only makes tobacco products easier to start and harder to quit, but tobacco companies have also targeted its marketing to African Americans and other marginalized groups across the country for decades, contributing to disparities in tobacco product use and subsequent harm. Between 1980 and 2018, menthol cigarettes slowed the decline of smoking prevalence by 2.6% and were responsible for 10.1 million extra smokers, 3 million life years lost, and 378,000 premature deaths.[34]  With the tobacco industry’s relentless targeted marketing of menthol cigarettes to the African American community, a disproportionate amount of the harm from menthol has also fallen on African Americans. While 12% of the US population is African American, African Americans account for 41% of the premature deaths and 50% of the life-years lost during this same time period.[38]  Learn more about how the tobacco industry has targeted African Americans with menthol marketing.

According to a 2011 report by the FDA’s Tobacco Products Scientific Advisory Committee (TPSAC), removing menthol cigarettes from the marketplace would benefit public health. They estimate that the effects of such a ban would include:

  • 39% of menthol smokers would quit
  • 47% of African American menthol smokers would quit
  • preventing over 17,000 fewer premature deaths by 2020
  • preventing nearly 2.3 million people from initiating smoking by 2020

According to a 2016 study, a nation-wide ban on menthol has the potential to save hundreds of thousands of lives, and nearly 1/3 of them would be Black lives.[33] 

Stories from the Field 

Story from the Field: Minneapolis Flavor Restrictions

Minneapolis, MN enacted restrictions on the sale of flavored tobacco products, other than menthol flavored, limiting them to adult-only tobacco stores. These restrictions apply to products such as cotton candy-flavored shisha, apple-flavored chewing tobacco, grape-flavored little cigars, and e-liquids that are sold in thousands of kid-friendly fruit and candy flavors.  At the same time, the city of Minneapolis also set a minimum sales price for cigars of $2.60 each or $10.40 for packs of four or more. Read more.

Story from the Field: San Francisco

In June 2017, San Francisco became the first city to completely restrict the sale of any flavored tobacco product, including menthol, within the city limits, without exception. Learn about the groundwork involved in making it happen.

Story from the Field: Local Menthol Policy Case Studies - Minneapolis, St. Paul, and Oakland

This webinar offers case studies for successfully passed local policies restricting the sale of menthol tobacco products. Come find out Minneapolis, St. Paul, and Oakland were able to pass their policies, who helped, lessons learned, and more. 

Resources

Product Specific Resources: 

Additional Policy Resources: 

Countering Opposing Arguments: 

Media Campaigns:

Best Practices for Getting Started

Last updated July 11, 2024

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