By: Elizabeth Tansing, Senior Director, State Affairs, FMI

Before the 24-hour coverage of the presidential impeachment hearings, the majority of the news this fall surrounded e-cigarettes, their safety, and the many flavors in which they come. 

In response to reports of illness and some deaths associated with vaping, governors in eight states – Montana, Massachusetts, Michigan, New York, Oregon, Rhode Island, Utah and Washington - quickly announced temporary flavor bans until the Centers for Disease Control and Prevention (CDC) could find the cause of such illness. (Bans in Michigan, Montana, New York, Oregon and Utah have since been put on hold by the courts, due to pending lawsuits.) The campaign for Tobacco-Free Kids lists more than 230 localities that have passed restrictions on the sale of flavored tobacco products, although laws differ in their application to specific products and store types. 

Just a week ago, the CDC identified vitamin E acetate as a chemical of concern in e-cigarettes, and now the CDC associates it with lung injury when vaping. The CDC says that vitamin E acetate is used as an additive, most notably as a thickening agent in tetrahydrocannabinol (THC)-containing e-cigarette, or vaping, products.

In 2009, when the Family Smoking Prevention and Tobacco Control Act became law, flavored cigarettes, other than menthol, were outlawed. At that time, the FDA did not have authority over e-cigarette products, although this was granted in 2016 through the Deeming Rule. In March 2018, FDA issued an advance notice of proposed rulemaking to help determine how best to regulate flavors in e-cigarette products, including menthol. Final FDA guidelines on this are still pending. This fall, President Trump said he would quickly put in place an e-cigarette flavoring ban. He has since walked back that pledge, lending an ear to those who say the ban could boost cigarette smoking rates and harm businesses.

Meanwhile, Beacon Hill lawmakers have set the stage for Massachusetts to become the first state to enact legislation banning flavored e-cigarettes, among other things, as the bill is resting on Gov. Charlie Baker’s (R) desk. Among the “characterizing flavors” that are banned in the bill are mint and menthol, two flavors generally associated with smoking cessation products. 

And earlier this week, a bill sponsored by Rep. Frank Pallone (D-N.J.) regarding the sale of tobacco and e-cigarettes has been approved (28-24) by the House Energy and Commerce Committee, where Pallone is the chair. H.R. 2339, “Reversing the Youth Tobacco Epidemic Act,” raises the purchase age of tobacco and e-cigarettes to age 21, prevents online sales, and bans characterizing flavors, including mint and menthol. The House could pass the bill, although there has been some concern about including menthol in the ban, as this is used in smoking cessation products. The bill could have a tougher time in the Senate, where a proposal is pending, introduced by Senate Majority Leader Mitch McConnell (R-KY), that lifts the tobacco purchase age to 21. 

While the impeachment hearings continue to grab headlines, a Senate confirmation hearing is quietly taking place this week on Dr. Stephen Hahn, President Trump’s nominee to become the next FDA commissioner. Dr. Hahn, an oncologist and chief medical executive at Texas’ MD Anderson Cancer Center, said in response to questions during the hearing that he agrees aggressive action is needed to prevent another generation of Americans from being addicted to tobacco.

For now, FMI will continue to monitor and report on the federal, state, and local action on flavored e-cigarette bans.