There is a frequently used saying in politics: “elections matter!” This is certainly applicable to the tobacco and regulatory space, where who controls the White House, Congress and even who runs things on the state level have substantial impacts on policies.
On the federal level, the fate of two proposed rules, one to ban menthol in cigarettes and the other banning flavored cigars, hang in the balance after the current White House administration delayed finalization of these rules until after the election as “the rules have 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. It’s clear that there are still more conversations to have, and that will take significantly more time,” according to a Department of Health & Human Services statement on April 26.
As a result, post-election, one of three scenarios are likely to occur:
1.) VP Kamala Harris wins the election, and the rules are finalized shortly after November.
2.) VP Harris loses, and the rules are finalized prior to the new administration taking office.
3.) Former President Donald Trump wins, and his administration holds the rules and prevents finalization.
Regardless of when the rule is finalized, there will be an effective date of at least one year from publication, and this timing is likely to be extended due to expected Court challenges.
Whatever course of action is taken on the menthol cigarette and flavored cigar ban, the finalization of these rules will impact the timing of proposing a rule regarding a maximum cap on nicotine in cigarettes and possibly other combustible tobacco products.
The FDA has stated publicly that it won’t move forward on low-nicotine until sometime after the final menthol cigarette and flavored cigar regulations are released. As a reminder, this proposal is much earlier in the rulemaking process compared to the menthol/flavored cigar ban as there are a number of steps the agency needs to take before these regulations take effect, thus resulting in many years before any low-nicotine rule is effective.
Party control of Congress will also have an impact on tobacco and nicotine legislation. In 2021, when President Joe Biden just took office and the Democrats controlled both the U.S. Senate and House, substantial increases in tobacco taxes were proposed as part of an economic package. After engagement from industry stakeholders, the tobacco tax hikes were removed from the package. Currently, the U.S. Senate is led by Democrats by a 51-49 margin, and the U.S. House is controlled by Republicans. My prediction is that the Senate flips to Republican control due to the number of seats Democrats are defending and the House changes to Democrat-led due to the narrow margin of current Republican control.
On the state level, there are 11 gubernatorial races throughout the country. In Vermont, Governor Phil Scott is running for re-election. Earlier this year, Governor Scott vetoed a bill that would have banned flavors in all tobacco products. Additionally, new governors will be elected in eight states as the incumbent is either not running again or is term limited.
Equally as important is party control of the state legislatures. Over 5,700 state legislative seats in 44 states are up for grabs this year. As we have seen in recent years, these legislative bodies have considered many tobacco-related bills, including increasing state excise taxes, banning flavors in tobacco products and restricting tobacco licenses.
As election day draws closer, I encourage all to be involved in the process and, most importantly, go vote! NATO will be engaged educating policymakers, regulators and candidates on these important tobacco and nicotine regulatory issues.
David Spross is the executive director of the National Association of Tobacco Outlets (NATO), a national retail trade association that represents more than 66,000 stores throughout the country.
