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A ban on menthol-flavoured cigarettes and all flavoured cigars should be good news for companies involved in non-combustibles.
However, a delay until March this year plus the likelihood of further delays from tobacco company legal challenges make the ban’s potential timeline uncertain – though not its eventual entry into force, according to legal expertise.
The US Food and Drug Administration (FDA) says the cooling sensation of menthol makes it easier for young people to start smoking. If the FDA moves forward with the menthol ban, it will be one of the most consequential tobacco control steps taken by the FDA in recent memory.
According to the Centers for Disease Control and Prevention (CDC), sales of menthol-flavoured cigarettes in 2021 made up 37% of all cigarette sales in the US. This represents the highest proportion since major tobacco companies were first required to report this data to the federal government in 1963, when menthol cigarettes made up 16% of all cigarettes sales in the country.
Potential boost to e-cig sales
This means that any blow to conventional menthol cigarette sales will likely benefit vaping and other tobacco alternatives – even if the government appears to be treating these product groups differently.
As the White House has not approved the final rule, it remains unclear whether the ban would affect heated tobacco products (HTPs). But as the FDA defines HTPs as cigarettes – a definition it does not apply to vaping products – it is very likely it will do so.
Whether included or not, the removal of combustible menthol cigarettes from the market will probably drive a large number of current users to look at other products.
“The menthol ban is likely to boost sales of e-cigarettes and novel nicotine products,” said Kevin Schroth, associate professor at Rutgers School of Public Health and an experienced public health attorney.
FDA clouds the outlook
However, just how substantial a boost that could result in for vaping remains somewhat cloudy, as the FDA continues to maintain a de facto ban on non-tobacco flavours in vaping products.
At the same time though, the agency has already authorised a number of other menthol-flavoured non-conventional cigarettes and non-vaping products, including nicotine pouches, heated tobacco sticks and very-low-nicotine combustible cigarettes.
Gregory Conley, director of legislative and external affairs of the American Vapor Manufacturers (AVM), highlighted that this does appear to signal the FDA is making an attempt to differentiate between different classes of products. But those authorisations took place under different leadership, meaning there is no guarantee the FDA will change its de facto ban on menthol vaping products, he said.
“The CTP [Center for Tobacco Products] is now headed by Brian King, a man who has spent most of his adult life employing simplistic metaphors to justify banning or severely restricting all flavoured tobacco and nicotine products,” Conley told ECigIntelligence. “All signs point to Dr King continuing his intransigence on menthol vaping products, even if a menthol cigarette ban is approved and survives litigation.”
Delaying the inevitable
Meanwhile, Schroth contends challenges from the tobacco industry will only delay the application of the ban and not change the outcome, as the FDA is in a strong position that will lead to it almost certainly prevailing in any lawsuit.
According to the public health law professor, previous history and scientific evidence point to the FDA most likely triumphing in any court challenge.
“Given the weight of scientific evidence and the FDA’s clear authority to take this action, the FDA is likely to prevail when the tobacco industry challenges this in court,” Schroth told ECigIntelligence. “That said, the tobacco industry is, nevertheless, likely to take its chances with a lawsuit and, if nothing else, a lawsuit may result in even further delay.”
This is due to the crucial role played by menthol in recruiting new smokers for the industry, he added. The industry will take any chance to defeat the ban and it “will fight this tooth and nail”, because menthol cigarettes comprise a significant portion of US cigarette sales.
Cliff Douglas, president and CEO of the Foundation for a Smoke-Free World, said that banning the sale of menthol cigarettes would not mark the end of the tobacco epidemic in the US and would only be the first step in helping smokers quit. He encouraged the FDA to ensure that smokers have the tools they need at their disposal.
“These include previously existing nicotine replacement therapies, as well as less-harmful alternatives to cigarettes, like oral lozenges, pouches and e-cigarettes – some of which may be mentholated,” Douglas told ECigIntelligence. “These products are crucial for reducing the risks of tobacco for adults who may not otherwise be able to quit.”
Other flavour bans to follow?
Conley believes that opponents of flavour bans should not expect opposing action at the state level. States are very unlikely to oppose transposing the federal ban on grounds of consumer choice or individual freedom, and there is practically zero chance any opposition would find success.
Under the principle of supremacy of federal law, federal law is superior to state law. Opposition is possible if states deem the law to be unconstitutional. However, it is a significant process, and it has never been successful before.
Instead of seeing states fight back against the menthol ban, the opposite may prove true, and states may utilise the introduction of a federal ban to increase restrictions in other areas of tobacco flavouring.
In an environment where menthol cigarettes are banned, state legislators may find it easier to attach additional bans impacting all other flavoured tobacco and nicotine products, rather than only pass state laws codifying the federal ban.
According to ECigIntelligence legal analysis, a transposition bill is still likely to go through when additional clauses are attached if those do not have a significant impact.
Whether additional flavour bans would be considered significant in terms of impact remains to be seen. ECigIntelligence believes it likely that legislators will attempt to introduce such additional measures at the state level, and it remains to be seen whether such moves would then survive challenges.
Republican opposition and Democratic support
Overall, Republicans and industry-related associations have largely opposed the move, saying it would lead to an illicit market and cost hundreds of millions of dollars from federal and state budgets due to loss of tax revenue.
Democrats and public health organisations have generally supported the ban – sending numerous letters to the FDA encouraging it to bring in a ban and remonstrating with it over delays. For example, a group of US Senate Democrats once again tried to push the Biden administration to take action on banning menthol-flavoured cigarettes and all flavoured cigars as soon as possible. The letter to Office of Management and Budget (OMB) director Shalanda Young voiced concerns about the continued delay.
– Antonia Di Lorenzo ECigIntelligence staff
