FDA to Move on Menthol Cigarette and Flavored Cigar Bans

Outlawing these products would push them to the unregulated black market, says NACS.

January 28, 2022

Broken Cigarette

ALEXANDRIA, Va.—The U.S. Food and Drug Administration announced that it plans to issue proposed rules on two tobacco product standards—one prohibiting menthol as a characterizing flavor in cigarettes and another prohibiting all characterizing flavors (including menthol) in cigars—by spring.

In April 2021, the FDA announced its commitment to advancing these two tobacco product standards. Then in November, attorneys for the FDA appeared in court as anti-tobacco groups accused the agency of failing to implement a ban on menthol cigarettes. This week’s announcement follows that case.

Mitch Zeller, director, Center for Tobacco Products, said in a statement, that the FDA’s actions “are an important opportunity to achieve significant, meaningful public health gains and advance health equity. For far too long, specific populations have been targeted and disproportionately impacted by tobacco use, especially when it comes to characterizing flavors that entice them to start and keep smoking,” Zeller wrote.

In the convenience retailing channel, cigarettes contributed 27.79% of in-store sales in 2020, according to the NACS State of the Industry Report of 2020 Data. Other tobacco products, a category which includes cigars, accounted for 6.90% of in-store sales in 2020, NACS SOI data indicate. (Read more about the tobacco category in “Smokin' Sales” and “Up, Up and Away” in NACS Magazine.)

NACS and other industry groups argue that banning menthol tobacco products will push them into the black market.

“Menthol makes up more than 37% of the tobacco market,” said Lyle Beckwith, NACS senior vice president of government relations. “That demand will not go away due to a ban. NACS is on record opposing menthol bans as we believe illicit vendors will quickly source and begin selling foreign and counterfeit menthol cigarettes. Illicit vendors do not verify age, do not collect and remit taxes, and they sell other illegal products beyond just menthol cigarettes.”

Two menthol cigarette brands, Newports and Kool, are widely sold across the convenience landscape and count among the top 10 best-selling cigarette brands (read “The Hot Sellers” in the July 2021 issue of NACS Magazine.)

Anna Ready Blom, NACS director of government relations, notes that there will be an opportunity for retailers to make their voices heard. “As part of the notice and comment rulemaking process, FDA will publish a proposal to ban these items, and then the public will have a time period to file comments before the agency finalizes the rule,” she said.

After reviewing and considering comments, the FDA could then proceed to issue final product standards, which would become enforceable once in effect. If implemented, the FDA’s enforcement of any prohibition on menthol cigarettes and flavored cigars would address manufacturers, distributors, wholesalers, importers and retailers.

Last summer, Washington, D.C., banned the sale of flavored tobacco products, including those with menthol. D.C. officials believe the ban will cost the city at least $13.9 million in lost tax revenue over the next four years.

Massachusetts banned the sale of flavored tobacco products in 2019. Jon Shaer, executive director of the New England Convenience Store & Energy Marketers Association, said the state’s attempt at reining in menthols “has failed in whatever goals it had intended for the products.” The ban on flavored tobacco and menthol has pushed consumers to cross state lines into New Hampshire and Rhode Island, which sold a large quantity of tobacco products, including traditional cigarettes and flavored vapes in the 12 months after the Bay State’s prohibition.

To read about NACS’ federal advocacy efforts related to tobacco sales, visit our Tobacco Advocacy page. To learn more about flavor bans for tobacco products, be sure to read “The Flavor Ban Boom” in NACS Magazine.