Proposed Bans on Menthol Cigarettes & Flavored Cigars

Last Updated: December 13, 2024

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, FDA published proposed rules to ban 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 the prohibition on behalf of the convenience store industry and met with the Office of Management and Budget to advocate against the prohibition. The agency is expected to publish its final rules this year. 

Retail Impact

Tobacco products are an important 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. Adult smokers purchasing these products also purchased $10.7 billion in other non-tobacco products during their visits to convenience stores. 

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. Prohibition would also undermine the compliance efforts and investments made by responsible retailers of age-restricted products. 

An influx of these products on the illicit market and illicit sellers do not discriminate based on age. Convenience retailers selling tobacco and nicotine products invest resources and time to ensure they comply 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 the 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 unnecessary economic burden placed on legal sellers who will lose sales to the illicit market. They also do not account for the loss of sales of other c-store merchandise that customers purchase along with menthol cigarettes or flavored cigars. 

NACS Position

The FDA’s proposals do not account for the full effects that 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.