FDA Proposed Ban on Menthol Cigarettes & Flavored Cigars

Last updated: May 2023

The Issue

When Congress passed the Tobacco Control Act in 2009, it gave the Food & Drug Administration (FDA) regulatory authority over the manufacturing and sale of tobacco products. In 2021, the Biden Administration announced its intention to ban menthol cigarettes and flavored cigars from the market. In April 2022, the Food & Drug Administration (FDA) formally published its proposed rules banning menthol cigarettes and flavored cigars, which was followed by a notice-and-comment period for stakeholders and the public to weigh in on the proposals. NACS filed formal comments opposing prohibition on behalf of the convenience store industry. The agency is expected to publish its final rules this year.

Retail Impact

Tobacco products are a vital source of revenue for the convenience store industry. Menthol cigarettes account for 34% of cigarettes sales and flavored cigars account for 51% of cigar sales in convenience stores today. Collectively, menthol cigarettes and flavored cigars combined for $23.7 billion in sales last year. Adult smokers purchasing menthol cigarettes and flavored cigars also purchased $10.7 billion in other, non-tobacco products during their visits to convenience stores last year.

Given the current user base for these products, prohibition will not rid these products from society but instead push current users to the illicit market, creating an issue for society as a whole and undermining the compliance efforts and investments made by responsible tobacco retailers.

Prohibition will lead to an influx of these products on the illicit market and illicit sellers do not discriminate based on age. Convenience store retailers selling tobacco and nicotine products invest resources and time to ensure they are in full compliance with federal, state and local laws. These types of protections are not in place on the burgeoning illicit market.

Moreover, illicit sellers sell unregulated products often imported from outside of the U.S. and containing more harmful ingredients. The tobacco products sold in convenience stores today are all authorized by FDA, meaning they have undergone intense scrutiny by the agency to ensure they meet appropriate standards under The Tobacco Control Act. Counterfeit cigarettes avoid this scrutiny at the cost of the purchaser. The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) states, “While all cigarettes are dangerous and are known to cause disease, counterfeit cigarettes often contain higher levels of tar, nicotine and carbon monoxide than genuine cigarettes, and may contain contaminants such as sand and packaging materials. Counterfeit cigarettes pose a greater health risk to consumers and cost taxpayers millions in lost revenue.” While the proposals argue that prohibition will lead to greater health benefits, FDA did not account for the risk to consumers  who buy counterfeit products from the illicit market.

Lastly, FDA’s proposals failed to consider the undue economic burden placed on legal sellers who lose sales to the illicit market. These regulations do not seem to account for those losses, in particular the losses of sales of non-tobacco items that are purchased when people buy menthol cigarettes or flavored cigars.

NACS Position

FDA’s proposals do not account for the full effects prohibition will have on the illicit market nor the economic impact to legal sellers today. NACS filed formal comments on behalf of the convenience store industry urging the agency to not move forward with its proposal for these reasons.