Local policies restricting flavored tobacco products successfully reduced product availability and youth and adult use of products like flavored e-cigarettes and menthol cigarettes compared to areas without such policies, according to new research by the Research Triangle Institute in partnership with Truth Initiative published in Nicotine & Tobacco Research. The research is the first comprehensive review to look at the outcomes of flavor and menthol tobacco restrictions implemented locally.
Flavors – including menthol – play an important role in attracting youth and young adults to tobacco products because they are easier to start and more difficult to quit. More than four out of five young adults ages 18 to 24 who have ever used tobacco reported that their first product was flavored.
The flavored policy landscape continues to evolve
A total of 338 U.S. jurisdictions restrict flavored tobacco in some form, according to Truth Initiative’s most recent update on local flavored policies. Most policies prohibit flavors such as fruit, candy, alcohol, or dessert, but don’t ban menthol flavors, while 119 prohibit the sale of all flavors – including menthol – across all products.
The national policy landscape around flavors is in flux. In 2020, partial restrictions on flavored e-cigarettes kept flavored products widely available across the country. Currently the Food and Drug Administration continues to review applications permitting the sale of e-cigarettes while the most popular brands remain on the market. The FDA also announced that it will begin the process within the year for rulemaking to prohibit the sale of menthol cigarettes and all flavored cigars. Local and state policies play an important role in curbing flavored tobacco sales and use given inconsistent national regulations.
Local flavor policies accomplish what they set out to do
Local policies restricting flavors also decreased youth and adult tobacco use of these products, according to four studies included in the review. For example, a 2020 study of a ban on all flavored tobacco in San Francisco found that in young adults 18-24, flavored tobacco product use dropped from 81% to 69% and flavored e-cigarette use rates decreased from 57% to 45%.
Tobacco industry tactics for circumventing local flavor policies
Although local flavored tobacco policies have proven effective in reducing product availability, marketing and use, piecemeal local laws present tobacco manufacturers with opportunities to avoid regulation. The review noted several factors that may undermine or mitigate local flavor policies.
Flavor policies have prompted tobacco manufacturers to unveil new “concept” flavors – vague non-characterizing descriptions on packaging that do not expressly refer to flavors – that appear to be designed to subvert future restriction on the sale of flavored disposable e-cigarettes. One study found that seven years after policy implementation, 70.9% of New York City retailers sold non-cigarette tobacco products with new concept flavors descriptors that weren’t available previously.
Many policies examined also exempt adult-only tobacco shops from flavor restrictions, nudging some store owners to take advantage of the exemption. Studies noted an increase in the number of tobacco shop license applications or shops attempting to qualify as an adult-only tobacco shop by altering the store’s physical space.
Tobacco shops and manufacturers aren’t the only ones crafting ways around local flavor laws. People living in areas with local flavor policies may seek to purchase their products in neighboring areas that don’t have such restrictions. Fifteen percent of flavored or menthol tobacco users living or working in a city with a flavored tobacco sales restriction reported purchasing products online and 12% purchased from retailers outside of city boundaries.
The need for federal regulation on flavored products
Local policies are important tools and incubators of strong policies, but limitations of local policies demonstrate the need for comprehensive federal policy. In addition to the evasive measures that tobacco retailers and consumers take to circumvent local tobacco control policies, none of the areas that implemented local restrictions were able to eliminate flavored product availability or sales entirely, speaking to the need for comprehensive FDA regulation on all e-cigarette products and on flavors.
“While states and localities are often seen as ‘laboratories’ for policy action, in the U.S. only the Food and Drug Administration can set national product standards regarding ingredients such as flavors, which would help reduce some of the unintended consequences of ambiguous product labeling and cross-border purchasing,” the authors write. The results of this study underscore the urgent need to complete and enforce rules limiting the sale of flavored tobacco products, including menthol.
In the meantime, state and local legislation governing tobacco flavors are critical in filling the gap left by incomplete federal policies. “Until comprehensive national policies are in place, however, US jurisdictions must continue their efforts to create and implement policies restricting the sale of flavored and menthol tobacco products to protect the most vulnerable from the deadly toll of tobacco-related disease and death,” the authors write.