FDA proposes limits to e-cigarettes, ban on menthol tobacco
Stopping short of its threatened ban on flavored e-cigarettes, the Food and Drug Administration said Thursday that it would allow stores to continue selling the products, but only from closed-off areas that are inaccessible to minors.
At the same time, the agency moved to outlaw two traditional tobacco products that disproportionately harm African-Americans: menthol cigarettes and flavored cigars.
The proposed menthol ban would be the most aggressive action the FDA has taken against the tobacco industry in nearly a decade, and it was notable given the Trump administration’s businessfriendly approach to regulatory issues.
If it clears the usual federal regulatory hurdles, a process that could take at least two years, the menthol ban could make a significant dent in cigarette sales. Menthol cigarettes account for about 35 percent of cigarette sales in the United States.
The three measures have a common target: the myriad flavors used to entice young people to vape and smoke. In restricting flavored e-cigarettes, the FDA is trying to curb the rapid escalation of youth vaping. Some 3.6 million people under 18 reported using ecigarettes, the agency said.
“Almost all adult smokers started smoking when they were kids,” Dr. Scott Gottlieb, the agency’s commissioner, said in a statement. “Today, we significantly advance our efforts to combat youth access and appeal with proposals that firmly and directly address the core of the epidemic: flavors.”
Still, the plan to sequester flavored e-cigarettes in stores, rather than ban selling them, was surprising to many people since details of a stronger proposal leaked out widely from the agency over the past week. Members of Congress sent out news releases, praising the agency for a ban that did not materialize. Federal law already prohibits the sale of cigarettes and e-cigarettes to anyone under 18.
But lawyers said the agency did not have the legal authority to impose such a ban without going through a long, complicated process that would have inevitably ended up in protracted court battles.
In trying to navigate between public health concerns and a reluctance to heavily restrict e-cigarettes at this time, Gottlieb urged manufacturers to police themselves. “We hope that in the next 90 days, manufacturers choose to remove flavored ENDS products” — referring to the devices — “where kids can access them and from online sites that do not have sufficiently robust age-verification procedures,” he said in the statement.
The mere threat of a ban, which he suggested two months ago, led e-cigarette makers in recent days to announce plans of their own that go beyond what the FDA laid out on Thursday.
Juul Labs, which is by far the largest e-cigarette seller, announced Tuesday it would suspend store sales of its flavored pods, except for mint, menthol and tobacco, and shut down its social media promotions. And it said it would toughen its online age-verification requirements. But it left the door open to resume orders for thousands of convenience stores, gas stations and other outlets across the country, if the retailers abided by age verification measures.
Still, public health advocates said they were disappointed with the FDA’s new vaping measures.
“Does this mean a simple curtain with a sign like we used to see at the entrance to the pornography section of video stores?” asked Matt Myers, president of Campaign for Tobacco-Free Kids.
And convenience store representatives reacted with mild surprise.
“It is not as severe as the commissioner had originally called for,” said Lyle Beckwith, a spokesman for the National Association of Convenience Stores, a trade group.
When asked whether a fair interpretation of the new rules might be that convenience stores could sell flavored e-cigarettes as long as the products are under the counter, out of sight and inaccessible to minors, Beckwith replied, “We will be reviewing the regulation and advising our members accordingly.”