Flavored tobacco use among youth and young adults

POLICY IN THE U.S.

FEDERAL POLICY

The 2009 Tobacco Control Act gave the FDA the authority to regulate tobacco products. The law also prohibits the use of characterizing flavorings in cigarettes, except for menthol. A study using data from the National Survey on Drug Use and Health found the flavored cigarette ban was associated with a 43% decline in smoking among youth ages 12 to 17 and a 27% decline in smoking among young adults ages 18 to 25. The study also found an increase in smoking of menthol cigarettes among youth immediately after the ban took effect, suggesting a substitution effect between flavored tobacco products.

Although the Tobacco Control Act gave the FDA the right to regulate all tobacco products, it did not specifically include non-cigarette tobacco products, such as cigars, little cigars, cigarillos, hookah, and e-cigarettes, in the ban on characterizing flavors. The FDA issued an enforcement policy in January 2020 that bans flavored cartridge-based e-cigarettes, other than menthol. Under current federal law, flavored smokeless tobacco, cigars, hookah and most e-cigarette products, such as e-liquids and refillable tanks, disposable e-cigarettes and menthol flavored pod e-cigarette products are allowed on the market.

The Tobacco Control Act also required the FDA Tobacco Products Scientific Advisory Committee (TPSAC) to conduct a review of menthol cigarettes’ effect on youth and other vulnerable populations. TPSAC published its report in March 2011, concluding that “the removal of menthol cigarettes from the marketplace would benefit public health in the United States.” In July 2013, the FDA published its own report, which came to a similar conclusion. At the same time, FDA requested public comment seeking additional information to help the agency make informed decisions about menthol in cigarettes. Almost five years later, in March 2018, the FDA again requested public comment on the role that menthol in tobacco products plays in attracting youth, in the likelihood of quitting smoking, and in the use of other tobacco products, including cigars and e-cigarettes.

In 2016, the FDA indicated that it intended to extend the ban on flavored cigarettes (excluding menthol) to cigars. In March 2018, the FDA issued an advance notice of proposed rulemaking to request public comment to better understand the role that flavors in tobacco products play in attracting youth. In March 2019, the FDA announced that it was considering removing any flavored cigars that were on the market as of August 8, 2016 and met the definition of a new tobacco product.

As the FDA faced a court-ordered deadline to respond to a 2013 citizen’s petition brought by a group of public health groups, the administration announced in April 2021 that it will begin the process within the year for rulemaking to prohibit the sale of menthol cigarettes and all flavored cigars. To date, FDA has not issued any proposed rules.

STATE AND LOCAL POLICIES

Several states and localities have enacted laws to restrict the sale of flavored tobacco products. Truth Initiative’s flavor policy database analyzes flavored tobacco product laws enacted by states, counties, cities, and towns. By the end of December 2020, 331 localities have placed some type of restriction on flavored tobacco products and, of those, 106 have comprehensive bans on menthol products, which are sometimes exempted from flavor policies.

In 2012, Providence, Rhode Island, became the first city to prohibit the sale of tobacco products with a characterizing flavor, including, but not limited to, the tastes or aroma relating to any fruit, chocolate, vanilla, honey, candy, cocoa, herb, spice, dessert or alcoholic beverage. The law exempts menthol, mint and wintergreen flavors. The tobacco industry sued to prevent this law from taking effect, and after a lengthy legal battle, a federal appeals court upheld the ordinance as a lawful exercise of local authority to regulate the sale of tobacco products.

In 2013, New York City prohibited the sale of tobacco products with a characterizing flavor. The law does not apply to e-cigarettes and does not include the flavors tobacco, menthol, mint or wintergreen. Using data on retail tobacco sales, a study found that sales of flavored tobacco products in New York City, excluding menthol tobacco products, decreased by 87% after the law went into effect. The research also found that in 2013, New York City youth aged 13 to 17 had 37% lower odds of ever trying flavored tobacco products than they did in 2010. Teenagers in New York City in 2013 also had 28% lower odds of ever using any type of tobacco product compared to teenagers in 2010. In 2020, New York State enacted a law prohibits the sale of all flavored e-cigarettes, except those approved as part of an FDA premarket approval.

Comprehensive menthol bans, defined as those that prohibit sales of all types of flavors across all products, including menthol/mint/wintergreen tobacco products, are gaining momentum at the local and state level. In 2019, Massachusetts became the first state to enact a comprehensive ban on the sale of all flavored tobacco products, including menthol cigarettes, except in smoking bars, such as cigar bars and hookah lounges, where it is allowed for on-site consumption.

Other states and localities have passed laws restricting the sale of flavored tobacco products. As of December 31, 2020:

• 331 U.S. jurisdictions have some type of restriction on flavored tobacco product sales.
• 106 U.S. jurisdictions have comprehensive flavored tobacco product bans, including Chicago, Los Angeles County, Minneapolis, Oakland, Sacramento, and San Francisco.
• Maine has banned the sale of cigars with candy, chocolate, vanilla, fruit, berry, nut, herb, spice, honey and alcoholic drink flavors. Premium cigars are exempt from the flavor ban.
• The Maryland Comptroller’s Field Enforcement Division prohibits the sale of flavored cartridge-based e-cigarettes and disposable e-cigarettes, except for menthol.
• New Jersey and Rhode Island prohibit the sale of all flavored e-cigarette products. Rhode Island’s policy is a regulation by the state’s health department, making permanent the governor’s emergency regulations.
• New York prohibits the sale of all flavored e-cigarettes, except those approved as part of an FDA premarket approval.
• Utah restricts the sale of flavored e-cigarettes, except menthol and mint, to non-retail tobacco specialty businesses.
• Implementation of California’s state law restricting sales of flavored tobacco products is suspended and remains ineffective as the tobacco industry successfully sought a referendum and the law will be voted on by the state’s voters on the next statewide ballot, scheduled for November 2022, though this date is subject to change.