As expected, 2024 has been a very dynamic year in the tobacco legislative and regulatory space.
Federal Happenings
In April, the Biden administration announced it was delaying a decision on whether to issue a final rule that would ban menthol cigarettes.
“This rule has garnered historic attention, and the public comment period has yielded an immense amount of feedback, including from various elements of the civil rights and criminal justice movement,” Xavier Becerra, the health and human services secretary, said in a statement. “It’s clear that there are still more conversations to have, and that will take significantly more time.”
Additionally, the Food and Drug Administration’s (FDA’s) Center for Tobacco Products (CTP) has been under increased scrutiny over the lack of transparency and delays in its regulatory processes and the influx of illicit vapor products in the marketplace.
In April, FDA Commissioner Robert Califf testified before the U.S. House Oversight and Accountability Committee over concerns regarding the FDA’s CTP operations. Commissioner Califf received several bipartisan concerns from U.S. House members questioning CTP’s handling of tobacco regulations, including the unreasonable delays in the premarket tobacco product application (PMTA) process, only authorizing 45 tobacco products (including only 23 tobacco-only vapor products) and the lack of enforcement against illicit products.
U.S. Senator Dick Durbin (D-IL) called in CTP Director Dr. Brian King and U.S. Department of Justice (DOJ) Principal Deputy Assistant Attorney General Brian Boynton to brief him on the lack of enforcement against unauthorized e-cigarettes.
In a press statement, Durbin stated, “I called in FDA and DOJ leaders to understand why they are failing to enforce the law in the face of clear harms to children. I reminded them that they have a job to do and that they have the legal authority to stop unlawful e-cigarette manufacturers from flooding the market. I hope our conversation spurred them to finally take action to protect the next generation from a lifelong addiction to nicotine.”
State-Level Actions
There are also some noteworthy tobacco and nicotine legislative developments at the state capitols.
The year started off with the Ohio Legislature’s override of the governor’s 2023 veto of statewide preemption of the sale of tobacco and other nicotine products. The legislation was in response to some Ohio cities banning flavors in these products. The legislature recognized that regulating tobacco and nicotine products is a matter of statewide concern and that prohibiting youth access is best accomplished with a uniform statewide policy. Some cities have filed a lawsuit seeking to overturn the legislation.
Banning tobacco and nicotine flavors continues to be considered by state legislatures. Utah passed legislation to ban flavored vapor products other than menthol. In Vermont, flavor ban legislation was vetoed by Governor Phil Scott, who cited inconsistencies in banning flavored tobacco products while the state has recently legalized other adult-oriented products such as cannabis. Michigan is considering a proposal to ban all flavored tobacco products, while similar legislation failed in Hawaii, Maine, Minnesota and New Mexico.
A few states are considering increases in tobacco and nicotine product excise taxes. Maryland increased the cigarette tax from $3.75 to $5.00 per pack, the other tobacco product (OTP) tax from 53% to 60% and vaping liquid from 12% to 20% of the retail price.
A significant tax increase on all tobacco products is currently under consideration in Michigan, while tobacco tax increase bills failed in Hawaii, New Mexico and Nebraska. Also, some states are starting to consider how to define and tax heated-tobacco products. For example, Mississippi enacted a bill that distinguishes heated-tobacco products and rather than apply the cigarette 68-cents per pack cigarette tax, a tax rate of 25-cents per pack was enacted.
An emerging issue in the states is the creation of state e-cigarette registries. The introduction of these bills is in response to the uncertainty around the FDA PMTA process and the proliferation of flavored disposable e-cigarettes on the market.
The FDA hasn’t completed processing applications for thousands of e-cigarette and other nicotine products. The FDA has only approved the marketing of a few dozen products, making unclear the regulatory status of a large number of products, such as those for which a PMTA was never filed, those for which a PMTA was timely filed and the application is awaiting an order, and those for which a PMTA was denied but the application remains pending for legal reasons.
These bills create a state-based directory that requires e-cigarette manufacturers to submit information to state tobacco regulators demonstrating that any e-cigarette being sold in the state is in compliance with FDA regulations and guidance. Florida, Kentucky, Utah and Virginia enacted legislation thus far in 2024, while approximately 15 states have rejected this legislation. Alabama, Louisiana, Oklahoma and Wisconsin have enacted legislation in previous years.
The National Association of Tobacco Outlets (NATO) remains engaged on these issues and at all levels of government to help protect its retail members. NATO is proud to serve its retail members and to communicate to legislators and regulators how its members sell tobacco products responsibly and in compliance with all applicable laws and regulations.
David Spross is the executive director of NATO, a national retail trade association that represents members operating more than 66,000 stores throughout the country. He comes to this position with 23 years of tobacco industry experience, previously working in the government affairs departments at UST Inc. and at Reynolds American.
