Last week, the U.S. Food and Drug Administration (FDA) withdrew its proposed rules on flavored cigars along with its rule on menthol cigarettes. This not only concludes the current rulemaking for both classes of tobacco products, but upends years of proposed rulemaking.
On April 29, 2021, FDA announced its intention to advance and adopt two tobacco product standards to ban menthol as a characterizing flavor in cigarettes and ban all characterizing flavors (including menthol) in cigars. Then, on May 4, 2022, FDA published the two proposed tobacco product standard rules in the Federal Register, which received over 225,000 comments prior to ending the comment period on August 2, 2022.
FDA was expected to publish final rules banning menthol cigarettes and flavored cigars in 2023. However, on April 26, 2024, and after much speculation, Xavier Becerra, the Secretary of Health and Human Services, announced it would take FDA "significantly more time" to finalize the rule on menthol cigarettes with the implication that FDA would also require additional time to promulgate similar rules for flavored cigars.
With these recent withdraws, the rulemakings regarding flavored cigars and menthol cigarettes appear to be dead for the time being. However, FDA is not prevented from changing its mind and reinitiating the rule making process to again attempt to ban these products in the future.
Regardless, these position reversals show that positive change may be coming for the flavored vape products category, which has been under heavy scrutiny by certain state and federal regulators for the past few years. This is particularly true in light of FDA's recent Marketing Granted Orders for nicotine pouch products (which come in flavors such as cinnamon, citrus, mint and wintergreen) and Four Menthol-Flavored E-Cigarette Products.
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