FDA Proposed Action on Flavored E-Cigarettes

Last Updated: March 27, 2019

The Issue

On November 15, 2018, the FDA announced that it intended to limit the sale of flavored electronic nicotine delivery systems (ENDS), such as flavored e-cigarettes, with the exception of mint, menthol, and tobacco flavored items. On March 13, FDA released its draft guidance on e-cigarettes.  FDA’s proposal bans the sale of flavored e-cigarettes in convenience stores, while allowing them to still be sold in vape shops or tobacco stores and on the Internet. The FDA proposes to focus their enforcement efforts on stores that allow minors to enter such as convenience stores. FDA has never produced any data or study showing that moving some e-cigarettes to adult facilities will result in better age verification.

FDA’s proposal would make it impossible for the majority of the convenience industry to continue selling flavored e-cigarettes. Banning the convenience industry from selling e-cigarettes will harm adult smokers who purchase e-cigarettes in lieu of other tobacco products.

Retail Impact

FDA is unfairly targeting convenience stores while allowing flavored e-cigarette products to still be sold in vape stores and online. Tobacco products are a major driver of traffic into convenience stores. In 2017, e-cigarette sales totaled over $1.1 billion.

NACS has devoted a substantial amount of time and resources to ensuring that convenience store operators are equipped to comply with federal, state, and local tobacco regulations. NACS called on its members to verify the age of purchasers of e-cigarettes and ensure they are not sold to underage individuals on the same basis as cigarettes. NACS publicly took that position in 2014 – two years before FDA required age verification for e-cigarettes.

NACS Position

NACS believes convenience store retailers should be allowed to continue selling flavored e-cigarettes as long as they are legal products on the market. The FDA’s current focus on restricting convenience stores while handing a government monopoly on the sale of some products to other retail stores or online stores has no support in the evidence or the law. NACS members can find the analysis of the draft guidance (PDF).