FDA Sends Proposed Ban on Menthol Cigarettes and Flavored Cigars to OMB for Final Review

The Food and Drug Administration (FDA) sent two proposed rules over to the White House Office of Management and Budget 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 becoming 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 rules for years and/or likely to stop implementation.

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 billions 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.

Unfortunately, the FDA has not proven it can demonstrate viable enforcement on illegal vape products…so how can they realistically enforce a menthol cigarette ban? PPA and other industry stakeholders encourage retailers to reach out to the White House 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.

White House contact information:

  • Call the White House: (202) 456-1414
  • Text the White House: (302) 404- 0880
  • Email the White House: https://www.whitehouse.gov/contact/
    • “Message Type” – Select the President

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