House Passes Bill Banning All Flavored Tobacco

NACS strongly opposed the bill banning menthol cigarettes, flavored dip and cigars.

March 02, 2020

WASHINGTON—On Friday, the U.S. House of Representatives passed H.R. 2339, the “Reversing the Youth Tobacco Epidemic Act of 2019” by a vote of 213-195. NACS strongly opposed the legislation because of the provisions banning traditional flavored tobacco products—menthol cigarettes, flavored cigars and smokeless tobacco. Leaders of the House found themselves scrambling to secure enough votes for final passage due to the massive grassroots outreach from NACS members and other stakeholders that opposed the bill.

The bill passed with 208 votes by Democrats and five by Republicans. Seventeen democrats voted against the bill including: Reps. Anthony Brindisi (D-NY), G.K. Butterfield (D-NC), Yvette Clark (D-NY), Lizzie Fletcher (D-TX), Marcia Fudge (D-OH), Jared Golden (D-ME), Kendra Horn (D-OK), Hank Johnson (D-GA), Conor Lamb (D-PA), Al Lawson (D-FL), Elaine Luria (D-VA), Ben McAdams (D-UT), Donald McEachin (D-VA), Colin Peterson (D-MN), Cedric Richmond (D-LA), Abigail Spanberger (D-VA) and Bennie Thompson (D-MS).

Many of these Democratic lawmakers opposed the bill because of provisions, such as the menthol cigarette ban, that they believe target communities of color. “[H.R. 2339] does not treat all flavored tobacco products equally [because it exempts] premium cigars preferred by white smokers yet [bans] menthol cigarettes … the preferred flavor of African-American tobacco users used by 90% of black tobacco users,” said Rep. Yvette Clark (D-NY) as she spoke in opposition of the bill as it was debated.

Today, menthol cigarettes account for roughly 30% of cigarette sales; flavored cigars account for 50% of cigar sales; and flavored smokeless tobacco products account for 86% of smokeless tobacco sales in convenience stores. Based on this sales data, NACS believes a flavor ban of traditional tobacco products would lead to the creation of a black market for these products.

“It is unreasonable to assume that consumers will simply transition away from these flavored products to unflavored tobacco alternatives. Instead, a ban on menthol cigarettes, flavored smokeless tobacco and flavored cigars will undoubtedly lead to a black market for these products because of the broad consumer base that exists among adult users. When that happens, the illicit purveyors of menthol cigarettes, flavored smokeless tobacco and flavored cigars, operating outside of the law, will not discriminate among their customers based on age. We already see this problem in the large illicit tobacco market that exists today,” stated NACS in a letter to lawmakers, which was entered into the record of the floor debate on the bill.

NACS also raised the point that the Food and Drug Administration (FDA) has regulatory authority of all tobacco products, including their manufacturing and distribution, under the Tobacco Control Act. With a prohibition of these products, the health safeguards set by the FDA will be ignored by illegal sellers operating outside of the law.

Speaking against the bill on the House floor, Rep. Virginia Foxx (R-NC) stated, “H.R. 2339 broadly overreaches and contains provisions that would unacceptably restrict the choice of adult consumers, [which] would have a negligible impact on teenage tobacco use and instead could actually increase the use of illicit and more dangerous tobacco products.”

Approximately 1,400 convenience store retailers sent letters to their members of Congress opposing H.R. 2339 because of the ban on traditional tobacco products.

Currently, a companion bill for H.R. 2339 has not been introduced in the Senate, and it is unlikely that the Senate will consider the legislation since the chamber is controlled by Republicans.