The U.S. Food and Drug Administration (FDA) released guidance on Jan. 2 that includes only a partial prohibition on flavors by allowing “vape shops” that sell open tank systems to continue to sell fruit, candy, mint, and menthol flavors that have hooked a new generation of tobacco users.
The guidance will also continue to allow the sale of menthol flavored e-cigarettes in all locations, abandoning previous commitments by the Administration to clear the market of all e-cigarette flavors in response to a growing epidemic of youth use.
The guidance does not preempt strong, comprehensive state and local policies that regulate the sale of flavored tobacco products.
Data from the 2019 National Youth Tobacco Survey show youth use of e-cigarettes in high schools skyrocketed, with a 135% increase over the past two years. Survey results also show that 27.5% of high school students used e-cigarettes in the last 30 days. Nearly 64% used mint or menthol flavored e-cigarettes, only 2% less than fruit flavored products and significantly more than candy flavors.
A statement from Gary Reedy, CEO of the American Cancer Society and American Cancer Society Cancer Action Network (ACS CAN), follows:
“The FDA’s decision to abandon its announced plan to clear the marketplace of all flavored e-cigarettes, including menthol, is unconscionable. Instead of moving forward with an effective proposal that could have a meaningful effect in curbing the youth e-cigarette epidemic, we once again have a hollowed-out policy that will allow the tobacco industry to continue to attract kids to a lifetime of nicotine addiction.
“It is well-documented that the tobacco industry uses flavored products to target youth with more than 80% of teens who report using tobacco products having started with a flavored product. This guidance is yet another giveaway to the industry, which will continue to have unfettered access to market its addictive products at the expense of public health.
“Vape shops and other retail stores are a source for e-cigarettes for youth. In fact, just last summer, the FDA issued more than 1,300 violations to retailers who sold e-cigarettes to minors. According to data from the 2018 National Youth Tobacco Survey, 14.8 percent of U.S. middle and high school e-cigarette users under 18 years of age reported obtaining e-cigarettes in the past 30 days from a vape shop or other store that sells e-cigarettes – more than the 8.4 percent who reported obtaining them from a gas station or convenience store. The federal government should not assume that retailers who only sell age-restricted products, like tobacco (or alcohol), are restricting who enters their store or effectively enforcing age of sale laws as evidenced by FDA’s warning letters. The FDA must hold retailers accountable by aggressively enforcing age restrictions to prevent youth access to these addictive products.
“In the limited locations where most flavors will be prohibited, we will now have a situation that provides a path for more youth users to continue to use or migrate toward menthol flavored e-cigarettes. Menthol is a derivative of mint, and there is little difference between these flavors. With nearly 64% of youth e-cigarette users reporting use of mint or menthol flavored products, the decision to allow menthol to remain on the market without any semblance of agency review or oversight dramatically undermines the potential public health impact of this proposal. With mint and menthol already being some of the most popular flavor choices among youth users, there’s reason to believe the popularity of menthol will only continue to rise.
“The American Cancer Society Cancer Action Network urges the Department of Health and Human Services, in coordination with the FDA, to reconsider its finalized guidance and instead enact a comprehensive policy that will protect our children from the profit-driven tobacco industry by removing all flavored e-cigarettes from the market in order to improve the health of the nation. ACS CAN also calls on Congress to resist influence from the tobacco industry and prohibit all flavors in all tobacco products. ACS CAN will continue to advocate at the federal, state and local level, with a presence in all 50 states, to advance and implement effective tobacco control policies that make up for the shortcomings of this guidance.”