More than 100 cigar and cigarette makers, along with several hundred distributors and thousands of c-store retailers are waiting for the next word on tobacco flavor and menthol rulemaking from the Food and Drug Administration (FDA).
Earlier this year, the FDA Center for Tobacco Products indicated it was still holding to an August 2023 final rule date for its Unified Agenda and Regulatory Plan for Flavored Cigars and Menthol cigarettes. You can find the summaries here.
As of the end of May, the FDA’s unified list still points to publication of the approved rules this August. The details, for those who are interested, state that both rules are still in the “final rule stage” and that “This is not a firm date.”
The “effective date” for marketplace enforcement is nowhere that I’ve been able to find. I’m looking at my watch. We all have dates for the prom. We made reservations.
Time Keeps on Ticking
August 2023 is less than 90 days away. For all of us who are re-planning shelf sets, scheduling production, introducing non-nicotine menthol and flavor alternatives, conducting smoker research, preparing legal activity and appeals, setting up state tax meetings, buying material and packaging supplies, preparing marketing materials and reserving ad space, a little more detail would be helpful.
Currently, the FDA’s effective date can be anywhere from 120 days to two years after publication of the final rule. The supply and logistics of removing and replacing around 8 million tobacco facings will need some planning. Flavored cigars currently on the shelf make money. It takes time to build volume and profit metrics to decide what’s next, not to mention what will be legal.
In California, which is a test market for rules as well as new products, there is still no official list of restricted SKUs according to the California Association of Retail Tobacconists (CART). It’s confusing. It’s also expensive.
When it happens, published rulemaking will include one effective date for both flavored cigars and menthol cigarettes. It is currently believed that the drop-dead date for shelf resets and a new range of smoking and smokeless products will happen a year later in August of 2024. The lag time allows for lawsuits and enforcement planning. Is this a real date?
There are actually two final rules on the way: Tobacco Product Standard for Characterizing Flavors in Cigars, and Tobacco Product Standard for Menthol in Cigarettes. The proposed rulemaking was subdivided mostly so that legal challenges could be directed at one of the rules without hindering enforcement of the other.
A reading of each provides insight into the FDA’s approach. Fourteen years after the Tobacco Control act, “characterizing” is still an ambiguous, subjective term. Cigar makers rightfully claim that if a flavor other than tobacco can’t be specifically defined, then it isn’t characterizing. Tobacco has a lot of different tastes and aromas.
We’ll Know When They Know
A corporate chairman I used to write speeches for once told me “there’s only one line: the bottom line.” In this case there are hundreds of bottom lines at every level of the tobacco supply chain. Tobacco companies and retailers don’t want bans on flavors and menthol. But they also don’t want to waste money because the FDA doesn’t understand how businesses work.
Look at it this way. The FDA may not believe they owe anyone an explanation, but consideration for their stakeholders should guide their behavior in providing timely clarity. It will save them a lot of administrative annoyance and inconsistent enforcement cost down the road.
John Geoghegan has spent the last 30 years in the tobacco business, including vice president strategic planning at General Cigar Co., U.S. manager for DjEEP Lighters, head of marketing for Kretek International Inc. and manager of LaMirada Cigar Co. He began his career 57 years ago at Procter & Gamble. Geoghegan is a graduate of the University of Cincinnati. He lives in Laguna Niguel, Calif.
