Sales of flavored e-cigarettes and menthol cigarettes would be restricted nationwide under a plan announced Thursday by the U.S. Food and Drug Administration (FDA) to combat the rising underage use of tobacco products.
Minnesota anti-smoking advocates hailed the changes, which include limiting sales to stores with age-restricted entry or areas inside stores that are inaccessible by people under 18.
The state has been a leader in enacting regulations that ban the sale of tobacco products to people under 21 and that restrict the sale of fruit- and candy-flavored electronic cigarettes to adult-only shops, said Laura Smith of ClearWay Minnesota, a quit-smoking program funded by the state's landmark 1998 legal settlement with tobacco companies.
The FDA restrictions are tantamount to a ban on menthol sales for many convenience stores and gas stations but not for specialty vape and tobacco stores, a top agency official said. The FDA also will require stepped-up age verification for online sales.
"The bottom line is this: I will not allow a generation of children to become addicted to nicotine through e-cigarettes," FDA Commissioner Scott Got t- lieb said in a statement.
In Minnesota, the toughest tobacco restrictions are in Minneapolis, Falcon Heights, Shoreview and Lauderdale. The cities restrict the sale of menthol cigarettes and flavored tobacco products to tobacco specialty shops and require buyers of any tobacco product to be 21.
St. Paul allows menthol cigarettes and fruit- and candy-flavored products to be sold only in tobacco stores, but those who buy tobacco only need to be 18. Other cities, such as Duluth, Robbinsdale and Mendota Heights have restrictions on the sale of flavored tobacco, and more than a dozen cities, including Bloomington, North Mankato and Hermantown require anyone buying tobacco to be at least 21.
"I think we inspired them," Betsy Brock, director of research for the Association for Nonsmokers Minnesota, said of the FDA's plan. "But they need to implement this in a timely manner."
The FDA's tobacco blueprint was released as the government published new data showing a surge in e-cigarette use among minors. The 2018 National Youth Tobacco Survey, conducted by the FDA and the Centers for Disease Control and Prevention, found that vaping had increased 78 percent among high school students since last year and almost 48 percent among middle schoolers.
A recent survey from the Minnesota Department of Health found 26 percent of high school students are using some form of tobacco or nicotine. That is up 2 percentage points from 2014 and marked the first time youth tobacco use has risen in 17 years.
The survey found that 1 in 5 high school students used an e-cigarette in the past 30 days, and 60 percent of those who used tobacco used menthol or other flavored products. Nearly a third of youth e-cigarette users said they got them from retail outlets. That's the reason local bans and FDA action are needed, Smith said.
"We need products out of where youth are buying their snacks," she said.
A representative of the Minnesota Retailers Association, which has previously raised concerns about local tobacco regulations harming businesses, did not respond to a request for comment. In the past, a representative of the group said an average convenience store would lose more than $250,000 a year as a result of Minneapolis' ban on flavored tobacco products.
Some critics raised the possibility that the FDA could face a lawsuit by trying, in effect, to limit vaping product sales to certain types of stores.
"I don't think they know where the law allows the FDA to ban hundreds of thousands of stores from selling a legal product," said Lyle Beckwith, senior vice president of the National Association of Convenience Stores.
Gottlieb, in pursuing his tobacco strategy, is taking some flak from fellow conservatives.
"The administration promised less regulation — without sacrificing protections," said Jeff Stier, a senior fellow at the Consumer Choice Center.
U.S. Health and Human Services Secretary Alex Azar signaled his support for the FDA.
"We believe FDA's goals and policies strike the right public health balance in addressing the multifaceted challenge we have before us today," he said in a statement.
Smith, of ClearWay Minnesota, said, "The FDA should take aggressive steps to curb youth addiction" and use its authority "to the fullest extent."
The proposed menthol ban would be the most aggressive action the FDA has taken against the tobacco industry in nearly a decade. If it clears the usual federal regulatory hurdles, a process that could take at least two years, the menthol ban could make a significant dent in cigarette sales. Menthol cigarettes account for about 35 percent of cigarette sales in the United States.
The FDA's e-cigarette crackdown already has had an impact.
Juul Labs, which accounts for more than 70 percent of e-cigarette retail sales and has been blamed by the FDA for much of the rise in underage use, announced this week that it would stop selling most of its flavored e-cigarette pods — specifically, mango, fruit, crème and cucumber — in 90,000 retail outlets, and enhance its online protections. The company also said it would halt its social media promotions of the products. And Altria said late last month it would stop selling its pod-based flavored e-cigarettes for now.