EMA Meets with the Office of Management Budget (OMB) on Proposed Menthol Ban

Last week, EMA President Rob Underwood, along with EMA Convenience Store Committee members Jonathan Tang (Ira Philips, Inc., Gadsden, Alabama) and Brian Lohman (ASAP Energy; Weatherford, Oklahoma), met with the OMB to call on the Biden Administration to abandon the proposed menthol ban. The proposed menthol ban is currently under review by the OMB’s Office of Information and Regulatory Affairs (OIRA), the last step in the regulatory process before the rule can become final. EMA highlighted FDA’s failure to enforce its ban on flavored vapes which has led to a flood of illegal, disposable vapes manufactured in China and marketed to children. A menthol prohibition will drive legitimate transactions out of stores and into the illicit market, hurting small businesses and funding violent crime. There is no scientific evidence to support a nationwide public health policy that would treat menthol cigarettes differently than other cigarettes. EMA also highlighted the proposed menthol ban’s impact on small businesses across the country. Banning the use of menthol in cigarettes could also have a cascading effect on companies who supply fuel to independently owned and operated small business gas stations. Retailers may be unable to pay for their next load of fuel and pay for EV charging equipment unless they raise prices on in-store items and/or fuel due to the potential major revenue loss from a menthol flavor ban.

Additionally, EMA reiterated its Citizen Petition to the White House to drive more awareness and enforcement action against illegal vape products. A citizen petition is a way for individuals, members of a regulated industry, or consumer groups to petition FDA to issue, amend, or revoke a regulation, or to take other administrative action. The purpose of submitting a petition in this instance is to ask FDA to publish a list of deemed tobacco products by brand that may and may not be sold to help retailers comply with tobacco sales laws. A published list would reduce confusion and uncertainty in the marketplace while also assisting FDA’s enforcement efforts. The delays and uncertainty have a very real impact on the daily lives of American entrepreneurs including EMA’s member companies who require predictability and transparency to operate. EMA’s member companies and other retailers are well positioned to aid in the fight against illegal and dangerous products by keeping them off their shelves, but the ability to do so requires clear and rational regulatory framework, with changes communicated consistently and transparently.

Meanwhile, the House Small Business Committee sent a letter to the OMB/OIRA regarding the proposed menthol ban urging them to consider both the significant economic impacts on small entities and the fueling of illicit markets that would result from implementation of the proposed rule. According to NACS, the proposed rule would cause a single convenience store to lose $72,285 a year in non-tobacco sundry sales (nearly 4 percent of inside sales) on top of the $160,107 lost due to the reduction in sales of tobacco products. Small operators in the convenience industry would collectively lose $2.16 billion in sales, representing $232,392 in lost sales per store. Click here to read the letter.