Below are advances in point-of-sale tobacco control that we’ll be keeping an eye on in 2022. Click the links below or scroll to learn more:
- A Focus on Health Equity in POS Tobacco Control
- Comprehensive Bans on the Sale of Flavored Tobacco Products
- Tobacco Retailer Licensing
- Point-of-Sale Pricing Policies
- A Changing Tobacco Product Landscape
- Endgame Strategies
- Battles over Preemption
- Partnerships to Create Healthier Places: Tobacco, Food, Alcohol, Cannabis, and Physical Activity
1. A Focus on Health Equity in POS Tobacco Control
The United States has steadily expanded tobacco protections since 1964, resulting in less smoke in the air and fewer advertisements of tobacco products. However, these protections, which most Americans now take for granted, are not evenly distributed across the country or even across neighborhoods.
The availability and marketing of commercial tobacco products on a neighborhood level impact these disparities. Data from the 500 largest cities in the United States shows that census tracts with the highest smoking rates are also the ones with a greater density of tobacco retailers. These census tracts, which generally face multiple disadvantages, are also the ones with lower median household incomes and a greater proportion of people of color. 
The tobacco industry also targets specific demographic groups through tailored marketing tactics; bright candy-like packaging and an array of flavors appeal to youth while ads depicting rugged cowboys and hunters appeal to rural populations. As well, the industry, on countless occasions, has exploited Native American images on commercial tobacco products, a tactic used to encourage Native American use while also portraying tobacco products as more ‘natural’ to other communities.
A critical assessment of these manipulative tactics helps explain why, despite the overall US smoking rate decreasing to 12.5%, rates are much higher among people with lower levels of income and education, people who identify as American Indian/Alaska Native, men, people who identify as LGBTQ, people facing mental illness and disabilities, people who are uninsured or on Medicaid, people living in rural areas, and people living in the South and Midwest.
Fortunately, there are evidence-based and promising pro-equity solutions at the point of sale, including:
- Raising tobacco prices, through excise taxes, banning the redemption of coupons and other discounts, and setting minimum floor prices, is one of the most effective strategies for reducing initiation, decreasing consumption, and increasing cessation of tobacco products. Additionally, this strategy can help reduce tobacco use among low-income groups and reduce socioeconomic disparities in smoking; in fact, one study found that increasing tobacco prices was the only policy option of those assessed to show a significant pro-equity effect. See more on these policy options below in trend #4.
- Banning the sale of menthol cigarettes and all other flavored tobacco products also has significant potential to improve health equity. Recent research has found that between 1980 and 2018, menthol cigarettes slowed the decline of smoking prevalence by 2.6%, were responsible for 10.1 million extra smokers, 3 million life years lost, and 378,000 premature deaths. 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. A report from the Tobacco Products Scientific Advisory Committee shows that if menthol cigarettes were banned, 39% of all people who smoke menthol cigarettes and 47% of African Americans who smoke menthol cigarettes would quit. A menthol ban could also curb both initiation and progression to regular smoking among youth, as 80% of youth who have ever tried tobacco started with a flavored product, and youth who initiate smoking with menthol cigarettes are 80% more likely to later smoke every day. See more on this solution below in trend #2.
- Retailer density reductions strategies: Research conducted in New York and Missouri has shown that restricting tobacco retailers from locating near schools could nearly eliminate disparities in tobacco retailer density between neighborhoods. This restriction can be accomplished through licensing. Licensing strategies in San Francisco and Philadelphia that have capped the number of retailers within each city district are also working to reduce disparities in density between neighborhoods, and in rural areas, setting an overall cap on the number of retailers may help reduce disparities in density. See more on licensing in trend #3.
Health equity can and should be considered as part of any tobacco control policy, including equitable enforcement, and we expect this to get more attention in 2022 as well. Localities can consider conducting a health equity impact assessment to determine what the results of any given policy may be on the ground. An approach considering social determinants of health can help practitioners ensure that a policy’s benefits reach all populations and that resources and services are distributed consistently and equitably across these populations so as not to exacerbate existing disparities.
2. Comprehensive Bans on the Sale of Flavored Tobacco Products
We know that youth are more likely to initiate tobacco use with a flavored or menthol tobacco product. We also know that menthol products are easier to start and harder to quit. Scientific reviews and publications have time and again concluded that their removal from the market would benefit public health. In April 2022, the FDA is expected to issue a rule prohibiting menthol as a characterizing flavor in cigarettes and prohibiting all flavors in cigars, and FDA Commissioner Mitch Zeller released an update in late January 2022 stating that the agency is still on track with that plan. This long overdue move follows a lawsuit filed by the African American Tobacco Control Leadership Council and Action on Smoking and later joined by the American Medical Association and the National Medical Association, calling on the FDA to follow their own conclusion that removing menthol from the marketplace would benefit public health. In April 2021, the FDA responded to the lawsuit and to a citizen petition filed back in 2013 by the Public Health Law Center and many other national health groups urging the FDA to prohibit menthol as a characterizing flavor with an announcement of their intention to do so. While the FDA actually issuing a proposed rule to make the bans a reality is a historic step, it will still likely take years to implement due to likely litigation from the tobacco industry and the still lengthy process to finalize the rule. In the meantime, keep an eye out for more comprehensive policies prohibiting the sale of all flavored tobacco products, including menthol cigarettes, at the local and state level.
Flavored e-cigarettes also remain a concern as a key driver of youth e-cigarette use. While the FDA prohibited flavors other than menthol or tobacco in cartridge-based “pod mod” e-cigarettes like Juul in January 2020, flavored disposable e-cigarettes like Puff Bar and flavored e-liquids used in tank and mod style e-cigarettes remain on the market (most illegally given their lack of authorization under the FDA’s premarket review process). Data has shown that youth use of types of e-cigarettes not covered by the sales ban have skyrocketed, and use of flavors in products for which the restrictions apply have just shifted to menthol, underscoring that youth will use whatever flavors are available.
In 2021, we saw continued progress, including the first local bans on the sale of flavored tobacco in Oregon and Maine (both of which are comprehensive policies). They join with at least 335 localities across 13 states now restricting the sale of flavored tobacco products, including an increasing number that prohibit the sale of flavored products for all retailers and all flavors, including menthol. There are already proposals to ban the sale of all flavored tobacco products in the states of Colorado and Maine, and this year California voters will also decide whether to enact the ban on most flavored tobacco products passed by the California legislature in 2020 but pushed to referendum by the tobacco industry.
Learn more about flavored tobacco products and menthol tobacco products in our evidence summaries.
3. Tobacco Retailer Licensing
Tobacco retailer licensing (TRL) is a versatile regulatory tool that can be used to implement a range of policies. In its simplest form, a TRL policy requires stores that want to sell tobacco products like cigarettes, cigars, smokeless tobacco, and e-cigarettes to obtain a license from the city, county, and/or state. Strong TRL ordinances also require retailers to pay an annual fee to obtain or renew their license that covers the cost of administration and enforcement of the license, including regular inspections. A study published in the journal Pediatrics showed that strong TRL policies may lower youth initiation and use of both cigarettes and e-cigarettes. In California localities that had a strong TRL, youth were 33% less likely to initiate cigarette use and 26% less likely to initiate e-cigarette use over the course of 1.5 years compared to localities that had no licensing or did not have a licensing fee high enough to cover the costs of enforcement.
Licensing allows for more accurate tracking of all tobacco retailers in a given geography, including e-cigarette retailers and vape shops, and can serve as a platform on which to build other regulations that can have a large impact on the community environment, such as restricting the density, type, and location of tobacco retail outlets (e.g. no licenses can be issued to retailers at stores near schools). The potential for license suspension or revocation as a consequence for violations encourages retailers to comply with tobacco control law more than fines, which some may see as the cost of doing business. Despite the major benefits of licensing for tracking retailers, nearly a dozen states still lack any licensing requirement for tobacco retailers at the state level. However, in 2021, the state of Oregon reduced that list of states without licensing by one when they passed a strong statewide tobacco retailer licensing policy with a fee that covers the cost of administration and enforcement. They also removed any purchase, use, and possession penalties for tobacco from state law, and the new TRL policy will be enforced by state and local public health agencies.
There’s plenty of work to do in 2022, both for the remaining states without licensing and for strengthening some existing licensing laws that lack adequate funding to be effective. See the American Heart Association’s Tobacco Retail Licensure interactive map for more on each state’s licensing provisions. In addition, with 11 states that have yet to update their laws to match the federal minimum legal sales age of 21, there are additional opportunities for states to update their laws to include licensing and/or strengthen their current licensing laws at the same time. Licensing is also a key mechanism for ensuring that enforcement for tobacco control policies is focused on retail sales rather than on underage youth purchases. Learn more about Tobacco 21 best practices here and see state Tobacco 21 grades here to see how they align with best practices, including enforcement through licensing. Learn more about equitable enforcement of tobacco control policies.
Mapping can help communities determine the impact of any given TRL policy on the ground, for example, by helping to provide visual evidence displaying the number of tobacco retailers currently located near schools in their town or disparities in tobacco retailer density rates in their community. Mapping can also help determine what TRL “plug-ins” might have the most impact on the tobacco retail environment in their community.
4. Point-of-Sale Pricing Policies
Continuing with the focus on health equity, point-of-sale pricing policies are innovative tobacco control solutions that can reduce health disparities, counteract industry targeting, and encourage people who smoke to quit. Prices can be increased through excise taxes and through other policies such as establishing minimum “floor” prices and prohibiting coupon redemption and discounts on tobacco, which can help prevent the tobacco industry from circumventing the effects of tax increases.
On a statewide level, 2021 brought the number of states prohibiting discounts on tobacco and the redemption of coupons to three with Rhode Island joining New York, and New Jersey. As states may look to raise excise taxes on tobacco, they can also consider minimum floor prices and prohibiting discounts at the same time in order to keep prices high, as recent research suggests is needed. For example, Colorado’s tax increase that voters approved in 2020 also set a minimum floor price of $7/pack of cigarettes, which will rise to $7.50 in 2024.
On a local level, more places are also considering minimum floor prices and price discounting bans. In 2021, St, Paul, MN set minimum floor prices for both cigarettes and smokeless tobacco and prohibited discounts and coupons on all tobacco products. They join New York City as well as several localities in California, Minnesota, and Massachusetts in setting minimum floor prices.
Minimum price policies that also prohibit the use of price promotions (e.g. coupons, multi-pack discounts) could help reduce socioeconomic disparities in smoking by raising the price of discount brands, which may encourage more people who are lower-income and smoke to quit.  However, these policies should also be paired with increases in the availability of cessation resources and targeted outreach to low-income communities. Strong minimum price laws can also prevent price manipulation by geographic area or by brand, thereby reducing targeting of products to certain populations. Models estimate that prohibiting price promotions across the US could reduce smoking rates by 13%,  and establishing a national minimum price of $10 per pack of cigarettes could reduce cigarette sales by 5.7 billion packs per year and result in 10 million people quitting. Learn more about raising the price of tobacco through non-tax approaches and listen to our podcast episode on point-of-sale pricing policies.
5. A Changing Tobacco Product Landscape
In 2022, we will see changes, both large and small, to the tobacco product landscape. While there remains some uncertainty in how federal regulations will take shape, especially with changes in leadership. A new FDA Commissioner will likely take the helm – current nominee Dr. Robert Califf, who previously led the agency, has been approved by a Senate panel. In addition, Mitch Zeller, the current director FDA Center for Tobacco Products, is set to retire in April 2022. However, here are the changes we know to watch:
Premarket Review: One major factor in how the product landscape changes is the what happens with ongoing FDA premarket review and related FDA enforcement. At this point, all new products that were not on the market prior to the 2016 “deeming rule” and which have not received marketing authorization from the FDA should no longer be on the market. While they had issued marketing denial orders to over 1 million products, as of January 2022, the agency has only authorized the marketing of a handful products, including the e-cigarette device Vuse Solo and the associated cartridges in two tobacco flavors, as well as the (discontinued) oral nicotine products Verve chews and discs, each in mint flavors. They have yet to issue any decisions on the e-cigarette products that comprise the largest market share or on menthol flavored e-cigarettes. It is up to the FDA to remove products that remain on the market without authorization, and they have also only taken limited enforcement action against products that remain on the market without authorization, sending warning letters to those that are also most egregiously targeting youth. Learn more from the Public Health Law Center in A Quick Recap: What’s Going On With the Premarket Review Process? and from the Campaign for Tobacco Free Kids’ report An E-Cigarette Market Update: Flavored Products Remain Widely Available Three Months After Court-Ordered Deadline for FDA to Rule on Marketing Applications.
Very Low Nicotine Cigarettes: While 22nd Century’s very low nicotine (VLN) cigarettes were granted marketing authorization by the FDA in December 2019 (including a menthol flavor), in December 2021 they were granted authorization to market the products as “modified risk tobacco products,” though specifically only with reduced exposure claims, including “95% less nicotine,” “Helps reduce your nicotine consumption,” and “greatly reduces your nicotine consumption.” They will also be required to include the statement “Helps you smoke less” alongside the other claims on the cigarette packaging and advertisements. While the cigarettes have not been on the market to date, the company claim that they are now prepared to launch in pilot markets in the U.S. in the first couple months of 2022. It’s unclear how popular these VLN cigarettes may be with current smokers. Reducing nicotine in cigarettes to non-addictive levels is part of the FDA’s comprehensive plan for tobacco and nicotine regulation under the leadership of former FDA Commissioner Dr. Scott Gottlieb. However, there has been little movement on it since the agency’s announcement in 2017.
“Modern” Oral Nicotine Products: Products like nicotine pouches (e.g. Zyn, Velo, On) as well as nicotine lozenges continue to expand on the market as fast-growing category. They come in a range of flavors and nicotine strengths and some are advertised as containing “tobacco-free nicotine.” They’re also often (illegally) marketed as cessation products. While the flavors and possibility for discreet use of the smokeless, spitless products is concerning, data on youth use is currently lacking. However, the products were included in the most recent National Youth Tobacco Survey, so hopefully we’ll have more data soon. But we do have some data that the Truth Initiative collected in 2020 that shows a concerning level of youth use, with 13% of 15-24 year olds reporting using oral nicotine pouches within the past 30 days. Learn more about this products in our podcast episode on nicotine pouches and other “modern” oral nicotine products.
Synthetic Nicotine: Tobacco companies are marketing an increasing number of e-cigarettes (e.g. Puff Bar) and oral nicotine products as containing “tobacco-free nicotine,” meaning that the nicotine is synthesized in a lab rather than derived from tobacco plants. Unfortunately, the FDA definition of “tobacco product” only includes nicotine derived from tobacco right now, but states and many local jurisdictions can regulate nicotine products as tobacco products regardless of whether the nicotine is synthetic. There is a case to be made that synthetic nicotine products could be regulated by the FDA as drugs, similar to the way nicotine replacement therapies are. Federal legislators have also started pushing to give the FDA the authority to regulate synthetic nicotine products the same as nicotine products derived from tobacco, with a bill introduced in December 2021 to make this change. Learn more about synthetic nicotine:
- WEBINAR – Creative Chemistry: Addressing Industry Evasion and Synthetic Nicotine, Public Health Law Center
- What you need to know about new synthetic nicotine products, Truth Initiative
6. Endgame Strategies
The ‘Tobacco Endgame’ is a set of initiatives that seeks to eradicate tobacco use by establishing strategies that “eliminate the social, political, and structural constructs that allow the tobacco epidemic to continue.”  In 2021, we saw some key endgame policies passed and enacted:
- January 2021, two endgame policies went into effect: one in Beverly Hills banning the sale of all tobacco products outside of three existing cigar lounges and one in Manhattan Beach banning all sales of tobacco products without exception. Retailers in each locality could apply for a time-limited “hardship” exemption.
- In September 2021, Brookline, MA became the first city in the U.S. to implement a “tobacco-free generation” endgame policy prohibiting tobacco sales to anyone born after January 1, 2020.
- In April 2021, the city of Bloomington, MNset plans to phase out tobacco sales with a sunset on tobacco licenses.
Other cities, including St. Paul, MN, continue to set caps on the number of tobacco retailers allowed in their communities, and these caps can also be reduced over time.
Internationally, other countries are leading the way. In December 2021, New Zealand announced new components of their endgame strategy. The country, which has an “endgame” goal of reducing smoking to below 5% by 2025, is moving forward with a phased plan to get there, including:
- reducing the number of cigarette retailers (beginning in 2024),
- reducing the nicotine in cigarettes (beginning in 2025), and
- gradually raising the legal age of sale for cigarettes to create a “tobacco-free generation.” This means people who are 14 or younger in 2027 will never be able to buy cigarettes.
Importantly, New Zealand’s efforts are also part of plan to address disparities in smoking rates. According to a Reuters article on the proposals, while the smoking rate among adults overall in New Zealand is 11.6%, the rate is much higher among indigenous Maori adults at 29%. Learn more about New Zealand’s plans.
On a state-wide level, Hawaii attempted to phase out tobacco sales through a 2019 bill that called for raising the age to buy cigarettes and ultimately banning the sale of cigarettes over a five-year period. While the bill died in the House Health Committee, the proposal foreshadowed movement towards tobacco endgame initiatives at a statewide level. At the beginning of 2020, the American Heart Association was awarded a $5.6 million grant by the California Department of Public Health, California Tobacco Control Program to establish the California Tobacco Endgame Center for Organizing and Engagement. With a goal of totally eliminating tobacco use in California by 2035, the Center plans to provide training and technical assistance to support and grow the capacity of state and local organizations and agencies to pass comprehensive policies focused on heavily restricting tobacco products, which, in turn, would lead to a phasing out of public use of tobacco products. While movement from tobacco control to commercial tobacco product elimination is an ambitious goal, we expect to see great progress in and hope to see other state and local-level initiatives testing out innovative endgame strategies in 2022.
A reminder: While Big Tobacco talks about a “smoke-free world,” they continue to market the most deadly of their products aggressively both in the U.S. and in low- and middle-income countries, where they see untapped markets. Learn more about Big Tobacco’s attempts to appear like they are in favor of harm reduction in Truth Initiative’s report, “Spinning a New Tobacco Industry.”
Learn more about endgame approaches to commercial tobacco in our endgame podcast episode.
7. Battles over Preemption
Preemption of local level tobacco prevention and control policies is always something to be watching for. Unfortunately, preemption is one of the tobacco industry’s favorite tools to limit local innovation and prevent the implementation of life-saving policies. We know that local-level policy work often precedes state-level adoption of a policy, so tobacco companies have a vested interest to keep local power limited; the industry also often has more influence at the state level.
In recent years, we have seen wide ranging preemption on local laws governing the sale of tobacco products that were enacted as part of “Tobacco 21” bills (i.e. in Arkansas), and preemptive provisions are often added in at the behest of the tobacco industry at the last minute and/or in seemingly unrelated bills. Unfortunately, we’re likely to see more attempts to add in preemption in 2022.
This mirrors a trend in pushes for preemption happening on many public health fronts (in many cases pushed by the American Legislative Exchange Council) including higher minimum wages, paid sick leave, anti-discrimination laws, gun control laws, sugar-sweetened beverage taxes, and plastic bag or straw bans.
Despite this, some states with preemption currently in place are beginning to push back on those limits to local authority. For example, in early 2019, advocates in Colorado successfully passed a law that reversed a previously existing de-facto preemption on local cigarette regulation. Previously, if a Colorado jurisdiction passed a retail licensing law for cigarettes or a cigarette tax law, that jurisdiction would forfeit eligibility to receive their portion of cigarette sales tax money from the state. The new law removed that restriction and gave counties the express authority to regulate the sale of cigarettes and other tobacco or nicotine products, as is further discussed in our case study. Since then, Colorado localities have been on the move, passing policies restricting the sale of flavored tobacco products, raising the minimum legal sales age to 21, tobacco retailer licensing, and local tobacco taxes
8. Partnerships to Create Healthier Places: Tobacco, Food, Alcohol, Cannabis, and Physical Activity
This trend is perhaps a hopeful one. Interventions in the retail setting present the opportunity to address multiple factors that influence health. The evidence behind how exposure to tobacco advertising and promotions at the point of sale contributes to tobacco use behaviors continues to grow. Across multiple studies, research has shown that youth more frequently exposed to tobacco promotion are 60% more likely to have tried smoking and 30% more likely to be susceptible to future smoking. As such, community interest in creating healthy retail environments has heightened, not only around tobacco but also around alcohol, food, cannabis, and the ways in which the community retail environment can support physical activity. The retail environment includes both the community environment (e.g. number, type, and location of stores) and the consumer environment (e.g. what products are sold, how they are advertised, prices, etc.). A study of food retailers that also sold tobacco in three North Carolina counties found that the community and consumer environments for nutrition, physical activity, and tobacco were interrelated, indicating that measures solely assessing the community environment can miss characteristics of the consumer environment.
Policies can address the retail environment holistically by tackling multiple issues at the point of sale in coordination instead of addressing each in isolation. The authors of the study in North Carolina suggested that food ordinances requiring licensed grocery stores to sell a minimum standard of healthy food, like Minneapolis’s staple food ordinance, can be expanded to place a cap on the amount of tobacco marketing allowed outside the store to reduce youth exposure. Given that areas with a higher number of tobacco retail outlets are often more urban and more walkable, restricting exterior advertisements to reduce youth exposure may be of heightened importance.  Further improvements to the aesthetics of the store exterior, such as better lighting, removing graffiti, providing adequate trash receptacles, and preventing loitering could also be incorporated as requirements for participation in healthy store programs in order to encourage walkability and active transport around the store. 
As interest in an endgame for commercial tobacco sales grow, healthy retail initiatives may also be part of the solution for helping convenience stores to adjust their business models and make the transition away from tobacco.
Counter Tools can help with monitoring and tracking of the sale of tobacco, e-cigarettes, alcohol, cannabis, food, and beverages, as well as with planning healthy retail initiatives. Contact us at email@example.com.
For more strategies on interdisciplinary collaboration to create healthy retail environments, review:
- ChangeLab Solution’s Healthy Retail: A Set of Tools for Policy and Partnership, which includes a healthy retail Playbook, Conversation Starters, and a Collaboration Workbook.
- Healthy Retail San Francisco
- Our evidence summary on Healthy Retail
- Integrating Tobacco Control and Obesity Prevention Initiatives at Retail Outlets, published in the journal Preventing Chronic Disease.
- California Department of Public Health’s Healthy Stores for a Healthy Community
- SmokeFree Philly’s Healthy Retailer pilot project
- National Collaborative on Childhood Obesity Research’s Measures Registry.