The FDA Is Adopting California’s Failed Policies on Tobacco | Citizens Against Government Waste

The FDA Is Adopting California’s Failed Policies on Tobacco

The WasteWatcher

The Food and Drug Administration (FDA) has taken the wrong approach toward tobacco with two final rules that would ban menthol in flavored cigars and cigarettes, which have been submitted to the Office of Management and Budget for their review.  If implemented, these flavor bans will have a devasting effect on small businesses that sell tobacco products and will decrease tax revenue for state budgets.  More concerning than the economic impact is the public health crisis flavor bans cause by limiting access to regulated products, opening the flood gates to a dangerous black market that increases criminal activity.  Instead of banning these products, the government should adopt tobacco harm reduction (THR) policies that educate smokers and encourage them to quit smoking. 

As Citizens Against Government Waste (CAGW) noted in its September 2023 issue brief, THR produces “are less dangerous alternatives to traditional cigarettes that are proven effective tools used to help adult smokers quit. THR save lives, yet state and federal bureaucrats have instituted regressive taxes, strict regulations, and outright bans on harm reduction products. Government regulations have resulted in a dangerous and unregulated market that puts consumers at risk.”

For example, the number of different e-cigarette devices sold in the U.S. has tripled to more than 9,000 since 2020.  This increase is, unfortunately, driven mainly by unauthorized disposable vaping products from China and Mexico.  Concern over such products led the FDA to issue 187 warning letters on May 25, 2023, to Shenzhen Innokin Technology Co. Ltd., which makes Exco Bars products, and Breeze Smoke, LLC, which imports and distributes Breeze products.  According to the FDA, these firms have been manufacturing, distributing, and importing unauthorized tobacco products in the U.S.

A February 7, 2020, CAGW blog post, predicted China would be the largest driver of illegal vaping products now pouring into the U.S. marketplace and that has unfortunately proven to be true.  The blog post stated, “Tobacco is a legal product in the U.S., and even if Congress could ban it, there is little doubt that China, which grows the most globally, and other sources would immediately create a black market.  The same result will occur if vaping flavors are banned.  Current adult users, who also like sweet and fruity flavors, will either go back to combustible cigarettes or take the chance and purchase products illegally, which will create a real crisis and endanger the health of millions of Americans.”

The states are known as the laboratories of democracy and California is a perfect lab rat example of what happens to a state tax base due to flavor bans.  California’s statewide flavor ban caused a 17.3 percent drop in sales.  In January 2023, 5.6 million fewer cigarette packs were sold than compared to sales in January 2022.  Annually, California revenues will drop by more than $300 million due to the bans.  The flavor ban not only impacted the state budget, but also resulted in a staggering number of unregulated products being used and sold.  An August 2023 WPSM Group study reported on the collection of 15,000 empty discarded cigarette packs and 4,529 e-vapor product packages from May 1 through June 28, 2023, in 10 California cities.  The report showed that the flavor ban had no effect on the access or demand of flavored e-vapor products or menthol cigarettes through the entire state.  Despite the ban, 97.9 percent of the e-vapor packs found were flavored.  And 27.6 percent of those products were non-domestic products, which are not approved for the U.S. market.  Where a state tax stamp was found on a product, only 45 percent were from California.

California offers a glimpse into the reality for the rest of the nation if the FDA’s menthol bans are finalized and implemented.  The same failed policies should not be expanded to the rest of the country.  OMB should prevent the rulings from being finalized.