FDA Proposes Ban On Menthol Cigarettes And Flavored Cigars

The Food and Drug Administration (FDA) issued two new proposed rules this week that would ban the manufacture and sale of menthol flavored cigarettes and ban all flavored cigars and cigarillos.

Should these federal flavor bans be finalized, it would represent the most far-reaching action taken by the FDA since Congress gave the agency the authority to regulate tobacco products in 2009.

The proposed rules essentially mirror each other with a few exceptions. Both rules would: become effective one year after being finalized; focus enforcement on manufacturers, distributors and retailers, but not on consumers for possession or use.

However, tobacco manufacturers as well as the Energy Marketers of America strongly oppose the menthol and flavor bans and will likely challenge the proposed rules which is likely to set off a protracted legal battle that would delay implementation of the rule for years and/or likely to stop implementation.

Specifically, the proposed rule for cigarettes would prohibit the use of menthol as a flavor in cigarettes and cigarette components and parts, including those that are sold separately to consumers.

Specifically, the rule would provide that a cigarette or any of its components or parts (including the tobacco, filter, wrapper, or paper, as applicable) may not contain, as a constituent (including a smoke constituent) or additive, menthol that is a characterizing flavor of the tobacco product or tobacco smoke.

The proposed rule for cigars and cigarillos would prohibit the use of all flavors in cigars.

The FDA proposes to define “cigar” as a tobacco product that: (1) is not a cigarette and (2) is a roll of tobacco wrapped in leaf tobacco or any substance containing tobacco.

The rule would provide that a cigar or any of its components or parts (including the tobacco, filter, or wrapper, as applicable) must not contain, as a constituent (including a smoke constituent) or additive, an artificial or natural flavor (other than tobacco) or an herb or spice.

The banned flavors include, but are not limited to: strawberry, grape, orange, clove, cinnamon, pineapple, vanilla, coconut, licorice, cocoa, chocolate, cherry, coffee, mint, or menthol, that is a characterizing flavor of the tobacco product or tobacco smoke.

A proposed menthol ban would give rise to illicit sales of these products by vendors and individuals who would not verify the age of consumers or collect taxes.

Convenience retailers train their employees how not to sell tobacco products to underage customers, yet law-abiding small businesses could lose in-store sales of flavored tobacco products and likely other in-store products if such a ban goes into effect.

Menthol cigarette sales make up about one-third of overall cigarette sales and even more in some regions.

The ban also has the potential to affect all levels of the tobacco industry from the thousands of unionized farmers, machinists, raw materials providers, truck drivers, warehouse operators, and retailers who operate responsibly in the legal, regulated industry today.

In addition, the federal government and state governments combined stand to lose more than $6.6 billion in tax revenue in the year following prohibition of menthol-flavored cigarettes and flavored cigars, as recently reported by the Tax Foundation, an independent tax policy nonprofit.

There is no timeline for the FDA rules to be finalized, but they are believed to be fast tracked and could be finalized by the end of 2022 or early 2023.

The public comment period is open for 60 days and will close on July 4, 2022.

After the rules are finalized, retailers will have one year from the effective date of the rules to sell remaining floor stocks.

EMA encourages retailers to submit comments on the proposed rule highlighting that a ban on menthol cigarettes and cigars with characterizing flavors will likely lead to an illicit market that will put small business convenience stores out of business and lead to billions in lost government revenue.

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