2024 Tobacco and Nicotine Regulatory Update

BY DAVID SPROSS, NATO EXECUTIVE DIRECTOR

Delays in Menthol Ban, Regulatory Scrutiny, and New Youth Tobacco Rules Shape the Evolving Landscape in Maine and Beyond

2024 has been a very dynamic year in the tobacco legislative and regulatory space both federally and in Maine. In April, the White House 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.” A rule banning flavored cigars also remains to be finalized.

Additionally, the FDA 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 & Accountability Committee over concerns about the FCTP’s operations. U.S. House members from both parties questioned Commissioner Califf about CTP’s handling of tobacco regulations, including the unreasonable delays in the PMTA application process. Since that hearing, a few more e-cigarette products have received marketing authorization orders, including the first flavored (menthol) e-cigarette products. Still, only 34 e-cigarettes have been approved. Meanwhile, the FDA finalized its rule to support the 2019 legislation that raised the minimum age to purchase tobacco products from 18 to 21. The rule provides that, beginning September 30, 2024, retailers must verify with photo identification the age of anyone under the age of 30 who is trying to purchase tobacco products, including e-cigarettes. Previously, this requirement applied to anyone under the age of 27. Additionally, retailers may not sell tobacco products via vending machine in facilities where individuals under 21 are present or permitted to enter. Previously, this prohibition applied to facilities where individuals under 18.

In Maine, the Legislature considered legislation that would have banned all flavors in tobacco products, including wintergreen moist snuff. That proposal failed. Maine did implement a new excise tax on nicotine pouch products. Advocates who support tobacco flavor bans, high excise taxes and other onerous regulations often cite the need for legislation to prevent youth usage of tobacco products. However, these proposals often have unintended consequences of increasing illicit sales and cross-border purchases.

Earlier this month, the FDA and the Centers for Disease Control youth usage data from the National Youth Tobacco Survey. In encouraging news, current e-cigarette use among middle and high school students declined from 7.7% to 5.9%. Overall, youth e-cigarette use has declined nearly 70 percent since its peak in 2019. Also, nicotine pouch use among youth remains low. This progress is partly attributed to responsible retailers who check ID’s to stop kids from purchasing tobacco products.

September is “We Card” Awareness Month, which is a national non-profit organization providing individual retail establishments as well as large retail chains with educational and training services for their compliance efforts with federal, state, and local laws, to ensure our members and their employees are trained to responsibly sell these products to adult customers. The National Association of Tobacco Outlets encourages retailers to go to www.wecard.org to order 2025 materials in effort to continuing to prevent individuals under age 21 from purchasing tobacco products.

David Spross is the Executive Director of the National Association of Tobacco Outlets, a national retail trade association that represents members operating more than 66,000 stores throughout the country.