Earlier today, the Commissioner of the U.S. Food and Drug Administration (FDA) announced that he “seek[s] to advance” several new and sweeping policies related to flavored vapor products, flavored cigars, and combusted menthol tobacco products, including cigarettes. As a continuing service to our members, IPCPR has provided a quick breakdown of what the Commissioner said, and how it might impact our retailer members.
What the FDA Commissioner said:
- Create a prohibition on the brick-and-mortar retail sale of flavored vapor products in any stores that are not age restricted (i.e. 18 & older) to enter OR have those products in an age restricted section of the store that prohibits minors from entering or viewing the restricted products
- Include an exception permitting the continued brick-and-mortar sale of mint-, menthol- and tobacco-flavored vapor products in non-age restricted locations.
- Require unspecified, “heightened” age-verification measures and other restrictions for on-line sales of flavored vapor products (other than mint-, menthol- and tobacco-flavored vapor products)
- The Commissioner intends to prohibit the sale of flavored cigars through the requirement of pre-market approval for any flavored cigar on the market as of August 8th, 2016.
- This policy would prohibit sales in any location.
- Grandfathered products (on the market before 2/15/2007) are exempt from this requirement.
- FDA will eventually move to issue regulations that would completely ban flavors in cigars, including grandfathered products not subject to the contemplated change in enforcement discretion policy, though that regulatory process will take several years.
- It is not clear how FDA will define “flavored cigars” or “flavors.”
- FDA intends to issue regulations that would ban menthol in cigarettes and cigars. Similar to the process of banning flavors in cigars, this process will take several years.
What does this mean for IPCPR retailers
- Importantly, the Commissioner has not indicated when FDA will provide further details on their intended enforcement or when the FDA intends to begin enforcing these policies. These details will be important for understanding retailers’ obligations, and we will update you as soon as FDA provides them
- Once enforcement begins, those retailers that sell flavored vapor products (other than mint-, menthol- or tobacco-flavored vapor products), would need to have and enforce an age-restriction policy for their store, or have a sectioned-off age restricted part of the store in order to continuing selling those products.
- Under the policy described, it remains unclear whether FDA will allow products subject to it (i.e., flavored cigars and most flavored vapor products) to remain on the market during the FDA’s review of pre-market applications.
- All IPCPR retail members should have strict age & ID verification policies in place already. IPCPR has provided a sample policy for retailers and their employees here.
- Any retailer conducting online sales of any regulated tobacco product should ensure robust age verification procedures are in place.
- Additional guidance can be found on IPCPR’s FDA Toolbox.
Today’s FDA announcement was driven by FDA’s growing focus on preventing youth access and use of tobacco and nicotine products. As the premier organization representing Premium Tobacconists and the customers who patron their stores, IPCPR remains proud that our retail members are ardent enforcers of federal, state and local age and ID requirements. This is reflected in government data that IPCPR recently shared with the FDA showing only .02% of all youth (17 & younger) surveyed had recently smoked a premium cigar. IPCPR will continue pressing the agency to ease the ineffective restrictions on premium cigars and the people who sell them, and focus FDA resources on objectives that actually benefit the public health.
IPCPR also encourages all retailers and their customers to visit CigarAction.org to stay up to date with issues facing the industry and learn how they can get involved.