NACS Comments on FDA’s E-Cigarettes, Menthol Regulations

November 15, 2018
ALEXANDRIA, Va. – Today the U.S. Food and Drug Administration announced its proposed regulations on the retail sale of flavored electronic cigarette products and a proposed ban on menthol cigarettes.
Early reports suggested the FDA would prohibit convenience stores from selling flavored vaping e-cigarette products. Initial reading of the proposal suggests the agency is calling for vaping flavors (melon, cucumber, etc.) to be only sold in age-restricted stores, stores where there is an age restricted area, or in retail stores without age restricted access but out of sight from customers (i.e. under the counter). It also appears that the agency will not impose new restrictions on unflavored or menthol vaping products.
Since NACS issued today’s edition of NACS Daily, more information has become available from the FDA:
The compliance policy revision would not apply to these ENDS products sold in age-restricted locations – for instance, a stand-alone tobacco retailer (such as a vape shop) that adequately prevents persons under the age of 18 from entering the store at any time; or, a section of an establishment that adequately prevents entry of persons under the age of 18.Where the establishment itself is otherwise open to all members of the public, in this instance, flavored ENDS products should not be visible or accessible to persons under the age of 18 at any time.
In the final version released by the FDA shortly after, the highlighted language was REMOVED, once again bringing into question whether convenience stores would be prohibited from selling these products at all if they did not have an adult only section.
We are currently reviewing FDA’s amended proposal and will advise NACS members as soon as more information is available. Our previous statements remain applicable:
“Sound regulation should ensure that e-cigarettes are sold responsibly and that the market is a level playing field,” said Lyle Beckwith, NACS senior vice president of government relations. “If enforcement shows that businesses are not following the law, then appropriate penalties should be imposed. We are reviewing the FDA’s proposal carefully and want to ensure that any final policy reflects these important principles. We urge the FDA to share any information they have demonstrating that its proposal will improve age verification on e-cigarette sales.”
Regarding FDA’s proposed ban of menthol cigarettes, Beckwith added:
“There is an existing market for menthol cigarettes today and banning them will only shift those sales to the black market. Black-market sellers of tobacco products do not check the ages of their purchasers, do not pay taxes on their sales, and sell more than just menthol cigarettes. NACS urges FDA to implement a plan to stop the current black market and prevent a new one before prohibiting a product that we know will result in large numbers of new black-market sales,” he said.
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NACS advances the role of convenience stores as positive economic, social and philanthropic contributors to the communities they serve. The U.S. convenience store industry, with more than 154,000 stores nationwide selling fuel, food and merchandise, serves 165 million customers daily—half of the U.S. population—and has sales that are 10.8% of total U.S. retail and foodservice sales. NACS has 2,100 retailer and 1,750 supplier members from more than 50 countries.