June 2018 Newsletter

Teens in Westchester County, NY Take on the Issue of Flavored Tobacco
Package of Tobacco Controls Advances in Massachusetts State Legislature
San Francisco Voters Approve Prohibition on the Sale of Flavored Tobacco Products
New Data Show 3.6 Million U.S. Middle and High School Students Used Tobacco in 2017
Newly Revised Resource: A Citizen’s Guide to New York Tobacco Controls
FDA Required Warnings for Cigars Upheld
Tobacco Companies Ordered to Tell the Truth on Cigarette Packages and their Websites
FDA Takes Action on Kid-Friendly E-Liquids
Pharmacies in Albany County Will No Longer Be Allowed to Sell Tobacco Products

Teens in Westchester County, NY Take on the Issue of Flavored Tobacco

Viral YouTube video highlights the role of flavors in hooking kids on nicotine

Alarmed at the sudden uptick in “Juuling” among their peers, Abe Baker-Butler and Jack Waxman, high school students from Westchester County, NY, produced a viral YouTube video, “Juulers Against Juul.” The video highlights the addictiveness of nicotine, and the role that marketing and characterizing flavors play in attracting young people to tobacco products.

The teens captured the ear of Senator Chuck Schumer, who wrote a letter to the Food and Drug Administration in support of the agency’s potential future rulemaking to prohibit the use of characterizing flavors in certain tobacco products. The public comment period for the proposed rule ends July 19, 2018 and the agency has already received more than 15,000 comments, many in opposition to the extension of the rule to flavored e-cigarettes by users who claim they have used the products to quit smoking.

Meanwhile, states and localities need not wait for the conclusion of the lengthy federal process to regulate the sales of flavored tobacco products. Indeed, those who are interested in decreasing the appeal of tobacco products can restrict sale of flavored products to certain locations, gradually phase out their sale, or prohibit them altogether. Contact the Policy Center to learn more about what your community can do about flavored tobacco products.

Package of Tobacco Controls Advances in Massachusetts State Legislature

Local controls on sale of tobacco products lead to statewide action

Building on tobacco controls commonly adopted by municipalities across the state, on May 9, 2018, the Massachusetts House voted in favor of a package of statewide tobacco controls that:

  • Raises the Minimum Legal Sales Age for tobacco products to 21 years old (156 cities and towns in Massachusetts have already raised the MLSA). The bill also preempts further age restrictions on the sale of tobacco products and vapor products by municipalities, but continues to allows other local tobacco controls.
  • Prohibits the sale of tobacco products, including vapor products, by pharmacies and health care institutions (160 cities and towns in Massachusetts have already prohibited this practice).
  • Prohibits tobacco use (including vaping) on school grounds.
  • Requires child-resistant packaging for liquid nicotine.
  • Prohibits the sale of vapor products through vending machines.

If also passed by the Senate, the law would take effect December 31, 2018. Any young adult who turns 18 prior to the effective date would still be allowed to purchase tobacco products in a municipality that has not already passed a local ordinance prohibiting the sale of tobacco to persons younger than 21 years old.

San Francisco Voters Approve Prohibition on the Sale of Flavored Tobacco Products

Voter referendum is approved in spite of nearly $12 million spent by Big Tobacco in opposition

When the San Francisco City Council passed a regulation to prohibit the sale of flavored tobacco products in summer of 2017, opponents collected enough signatures to send the issue to the ballot. On June 5, 2018, voters had their chance to make their voices heard, and approved the City Council’s policy in a resounding rejection of Big Tobacco. Residents voted 68-32 to prohibit the sales of all flavored tobacco products, including flavored e-cigarettes and menthol cigarettes. This vote represents a major public health victory, showing that strong public health messaging can counter Big Tobacco’s opposition (and higher spending on the campaign).

San Francisco is the first municipality in the nation to enact a citywide prohibition on the sale of menthol cigarettes as part of its local ordinance. Menthol cigarettes are more addictive, and are disproportionately used by young people and people of color. Other jurisdictions in California have enacted more limited restrictions, by prohibiting menthol cigarette sales near schools or in certain other areas. “The ban on menthol cigarettes is a monumental step forward for health equity and social justice for communities of color,” says Dr. Phil Gardiner of the African-American Tobacco Control Leadership Council.

New Data Show 3.6 Million U.S. Middle and High School Students Used Tobacco in 2017

E-cigarettes were the most commonly used tobacco product among youth

The Centers for Disease Control and Prevention (CDC) released new data showing how youth tobacco use has changed between 2011 and 2017. While youth use of combustible products continued its steady decrease, it was too early to tell whether youth use of e-cigarettes was levelling off after years of rapid increase. The data showed that nearly half of current youth tobacco users in 2017 used more than one tobacco product—a behavior that has been shown to increase nicotine dependence as compared to users of only one product.

E-cigarettes have continuously been the most commonly used tobacco product among youth since 2014. In 2017, over 2 million students were current e-cigarette users. In New York, e-cigarette use may be even more common among high school students, with the most recently available data suggesting that 20.6 percent of New York teens were current e-cigarette users in 2016, compared with 9.5 percent of teens nationally that year.

State and local governments may regulate the sales of e-cigarettes to prevent youth access. Communities concerned with the appeal of tobacco marketing, including marketing of e-cigarettes, to youth may consider regulating the number, type, and location of tobacco outlets in their communities, and/or regulating the redemption of price promotions, the sale of flavored tobacco products, or the minimum purchase age for tobacco products.

Newly Revised Resource: A Citizen’s Guide to New York Tobacco Controls

Updates to the Citizen’s Guide reflect changes to federal and state tobacco laws

Governments at all levels have implemented policies on tobacco product packaging, marketing, promotions, sales, shipment, and use, in order to promote public health and decrease tobacco attributable costs. These tobacco controls are comprised of federal, state, and local laws, regulations, court orders, settlement agreements, and more. The result is a patchwork of intersecting and overlapping laws and regulations that may be confusing to the average citizen.

A Citizen’s Guide to New York Tobacco Controls, first published in 2014, provides overviews of federal and state controls and contact information for the enforcing agencies. To stay up-to-date on changes to tobacco controls at the state and federal level, the Citizen’s Guide has been updated and is available on the Policy Center’s website. Since 2014, new products have been deemed to fall under FDA’s authority, and New York State has included new products in its Clean Indoor Air Act, which regulates tobacco use in public indoor and outdoor places. Other notable changes include the finalization of warning statements for certain product packages, and changes to rules governing the distribution of free samples of tobacco products.

We hope the guide will be useful in dissecting and navigating New York’s various tobacco controls. Please contact the Policy Center at tobacco@tobaccopolicycenter.org with any questions regarding this updated resource.

FDA Required Warnings for Cigars Upheld

Court finds health warnings are legally valid and promote public health

In 2016, the Cigar Association of America and two other trade groups filed suit against the FDA, challenging the agency’s rule deeming cigars as tobacco products subject to FDA regulatory authority. The Deeming Rule requires all cigar packaging and advertising to display one of six health warning statements. It further mandates that all tobacco retailers who blend pipe tobacco in-store to register as a manufacturer. Plaintiffs assert three main claims: 1) The FDA’s rulemaking process for the Deeming Rule was “arbitrary and capricious” in violation of federal administrative law; 2) The retailer registration requirement violates federal administrative law; and 3) The health warning requirements unconstitutionally compel speech in violation of the First Amendment to the U.S. Constitution.

On May 15, 2018, a D.C. district court upheld the FDA’s regulations in part (remanding in part), finding that the agency’s rulemaking process did not violate federal administrative law. Under federal administrative law, the FDA must determine that the regulations are in furtherance of their statutory charge to promote public health. The court found that the FDA had sufficiently established that deeming cigars to be tobacco products would increase cessation and prevent tobacco use, thus promoting public health. The court upheld the FDA’s authority to regulate cigars as tobacco products. However, the court, finding insufficient evidence supporting the relationship between the tobacco retailer registration requirement and public health, remanded this requirement back to the FDA for further consideration.

Further, the court upheld the health warnings for cigars. The court rejected the plaintiff’s claims that the required warnings violated the First Amendment, which requires that regulations compelling speech support a legitimate government interest and not be overly burdensome. The court found that the labels allowed sufficient space for manufacturers and retailers to communicate their messaging on products and advertisements, and therefore, were not overly burdensome. Further, the court found that the labels improved consumer understanding of the risks of tobacco products and corrected misperceptions of the safety of such products—constituting a sufficient government interest.

Please see our litigation page for background information on this case.

Tobacco Companies Ordered to Tell the Truth on Cigarette Packages and their Websites

Court-ordered statements are result of Judge Kessler’s landmark 2012 decision

According to a court order issued May 1, 2018, tobacco companies must disseminate statements on their cigarette packages to “prevent and restrain” further industry deception of the American public with regard tobacco use. These statements will be attached to cigarette packs as “onserts” for 12 weeks total over two years, beginning in November.

The court order also mandates that tobacco companies display the statements on their websites, beginning June 18, 2018, to appear indefinitely. The order will apply to any social media campaigns run by the affected companies.

The most recent order is just the latest development resulting from U.S. District Judge Gladys Kessler’s landmark 2012 decision finding that tobacco companies defrauded the public in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO). Judge Kessler found in that decision that the major tobacco companies concealed the known health risks of smoking, including the addictiveness of cigarettes and nicotine.

For more background on the case and the resulting court-ordered statements, visit our litigation page.

FDA Takes Action on Kid-Friendly E-Liquids

Agency cites JUUL and other e-cigarette manufacturers and retailers for selling e-cigarettes to youth

Recently, the FDA has taken several important steps to curtail the e-cigarette industry’s targeting of youth as part of the agency’s Youth Tobacco Prevention Plan, aiming to protect youth from the harmful health consequences of nicotine and tobacco products. In response to growing concerns regarding the booming popularity of JUUL products among youth, the FDA submitted an official request to JUUL Labs, Inc., requesting company documents regarding marketing practices, effects of product design, and public health impact. The company has until July 12, 2018 to respond to the agency. In addition, the FDA recently increased its enforcement efforts to prevent tobacco product sales to minors, citing 40 retailers for violations related to youth sales of JUUL e-cigarettes and conducting a nationwide undercover blitz to prevent sales of all types of e-cigarettes to youth, both online and at brick-and-mortar retailers.

In May, the FDA, in conjunction with the Federal Trade Commission issued 17 warning letters to manufacturers and retailers for selling e-cigarette e-liquids with labels and/or advertisements resembling kid-friendly foods and drinks. For example, one such letter was issued to the manufacturer of the e-liquid “Unicorn Cakes,” whose packaging and advertising resembles the popular children’s show My Little Pony.

The FDA cited the troubling rise in popularity of e-cigarette use among youth and increased child emergency room visits for nicotine poisoning as the primary reasons for the recent surge in regulatory action. FDA Commissioner Scott Gottlieb, M.D., noted “[n]o child should be using any tobacco product, and no tobacco products should be marketed in a way that endangers kids—especially by using imagery that misleads them into thinking the products are things they’d eat or drink.”

Pharmacies in Albany County Will No Longer Be Allowed to Sell Tobacco Products

Albany County is the third jurisdiction in New York State to prohibit tobacco sales

Following the lead of Rockland County and New York City, the Albany County Legislature passed a bill this month prohibiting the sale of tobacco products in pharmacies. After vetoing a previous iteration of a tobacco-free pharmacy law in 2014, Albany County Executive Daniel P. McCoy signed the bill into law on June 14, 2018.

Pharmacies will no longer be permitted to sell tobacco products, including e-cigarettes, beginning in September of this year (three months after the law is filed with the NY Secretary of State). Pharmacies may continue to sell cessation products, including nicotine replacement therapies that are regulated as drugs or devices.

Of 332 retailers registered to sell tobacco products in Albany County, 10 percent are chain stores that contain pharmacies, according to Capital District Tobacco-Free Communities. None of the independently owned pharmacies currently sell tobacco products. Reducing tobacco retail density in Albany County is expected to reduce youth tobacco use, promote cessation among current tobacco users, and promote health equity. Non-compliant pharmacies will be fined $500 for each day the pharmacy remains in violation of the law.