Policies Ending the Sale of Flavored Tobacco

These laws are not new. In 2017, the City & County of San Francisco passed the first local law prohibiting all types of flavored tobacco products. The tobacco industry funded an initiative to repeal the law, but San Francisco voters upheld this comprehensive ban at the ballot box in June 2018. Hundreds of cities or counties have passed similar laws.

In 2019, the first state law was passed by Massachusetts, followed by 5 state laws in Maryland, Rhode Island, New Jersey, New York, and Utah in 2020. Most recently, California passed its flavor restriction law in 2020. It took effect in 2022 after California voters strongly upheld the law at the ballot box.

Massachusetts and California's laws protect community health the most because they end the sale of all flavored tobacco products, including menthol cigarettes. At least 180 local regulations in these states also restrict the sale of menthol cigarettes.

The tobacco industry has challenged some of these laws in the courts, but in every case the laws have been upheld.

The tobacco industry has also tried to overturn some laws by pouring funds into voter initiative campaigns. Community and public health advocates have countered with effective education campaigns. Every time, voters have strongly rejected the initiatives at the ballot box and upheld the flavor restriction law.

Results of local and state laws prohibiting the sale of flavored commercial tobacco products are being studied and show benefits on reducing youth use and overall use.

A 2020 U.S. Surgeon General's report³ found that cities, towns, and communities that have limited the sale of flavored tobacco products have seen the odds go down of residents, including young people, using any type of commercial tobacco products or trying flavored commercial tobacco products.

Flavor restriction laws have not had negative consequences for retailers. Economic analysis in states that banned the sale of flavored products, such as Massachusetts, New York, and Rhode Island, suggest that these bans did not lead to a reduction in the number of convenience or tobacco stores, employees, or wages.⁴

Public health and community advocates have been working for years to restrict the sale of menthol and flavored commercial tobacco products in order to reduce initiation and address health disparities. These policies face strong opposition from the well-funded tobacco industry. This section provides an overview of legislative efforts that are ongoing:

• 2019: Governor’s Executive Order & State Board of Health emergency rule in response to the EVALI crisis banned all flavored vapor products (both nicotine and THC). 120-day ban from October 9, 2019 – February 7, 2020.
• 2020 legislative session: SB 6254 would have prohibited the sale of all flavored vapor products, plus other policy components. The bill was incomplete from its introduction because it did not address menthol cigarettes, flavored cigars, or other types of flavored tobacco products. The bill was further weakened by amendments and lost the support of community and public health advocates. The Senate moved the weakened bill forward on the last day of session, but no further action was taken in the House.
• 2021 legislative session: HB 1345 would have prohibited sale of all flavors in all tobacco and vapor products, plus many other policy components. A bill hearing was held in the House Commerce & Gaming Committee, but no further action was taken.
• 2022 legislative session: SB 5768 would have provided authority to the WA Department of Health (DOH) and the State Board of Health to regulate flavors in vapor products, as well as to regulate nicotine content in all commercial tobacco products, through rule-making. The bill received a hearing in the Senate Health & Long-Term Care Committee, and work was done on an amendment to refine DOH’s authority, but no vote was scheduled.

Menthol cigarettes are the only flavored cigarettes that were not banned in the 2009 Family Smoking Prevention and Tobacco Control Act. Since then, many advocacy organizations and public health agencies across the U.S. have pushed the FDA to prohibit all flavored tobacco products, citing abundant evidence that flavors attract youth and menthol products are responsible for more tobacco-related deaths, especially among Black Americans. The FDA failed to take meaningful actions and was sued in 2020 by the African American Tobacco Control Leadership Council for unreasonable delay in regulating menthol cigarettes.

In 2022, the FDA proposed a rule to prohibit menthol flavor in cigarettes and a rule to prohibit all flavors in cigars.^5,6

The two proposed rules only apply to cigarettes and cigars. These rules would not limit menthol or other flavors in e-cigarettes or in newer heated tobacco products. This federal rulemaking is behind schedule and still in progress.⁷

Recent progress:
In mid-October 2023, FDA sent both rules to the White House Office of Management and Budget for final review and finalization. Tobacco companies are expected to sue when the final rules are issued:

• FDA Proposed Tobacco Product Standard for Menthol in Cigarettes
• FDA Proposed Tobacco Product Standard for Characterizing Flavors in Cigars
• FDA fact sheet on both proposed tobacco product standards