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The Food and Drug Administration announced Thursday that it allowed stores to continue selling products, but only in closed areas inaccessible to minors.
At the same time, the agency has decided to ban two traditional tobacco products that disproportionately affect African Americans: menthol cigarettes and flavored cigars.
The proposed ban on menthol would be the most aggressive action of the F.D.A. for nearly a decade against the tobacco industry, which was remarkable because of the Trump administration's pro-regulatory approach to regulation.
If it removes the usual regulatory hurdles from the federal government, a process that could take at least two years, the ban on menthol could have a significant impact on cigarette sales. Menthol cigarettes account for about 35% of cigarette sales in the United States.
The three measures have one common goal: the myriad of flavors used to encourage young people to drink and smoke. By limiting flavored electronic cigarettes, the F.D.A. tries to curb the rapid escalation of youth vaping. About 3.6 million people under the age of 18 reported using electronic cigarettes, the agency said.
"Almost all adult smokers started smoking when they were kids," said Dr. Scott Gottlieb, commissioner of the agency, in a statement. "Today, we are making significant progress in the fight against youth access and the call with proposals that firmly and directly address the epidemic: aromas."
Nevertheless, the project of sequestering flavored electronic cigarettes in stores, rather than prohibiting their sale, has been surprising for many people since. the details of a firmer proposal were widely leaked to the agency last week. Congress members sent press releases, congratulating the agency for a ban that did not materialize. Federal law already prohibits the sale of cigarettes and electronic cigarettes to anyone under the age of 18.
But the lawyers said the agency did not have the legal authority to impose such a ban without going through a long and complicated process that would inevitably have resulted in protracted judicial battles.
In trying to navigate between public health concerns and reluctance to heavily restrict e-cigarettes at that time, Dr. Gottlieb urged manufacturers to control themselves. "We hope that in the next 90 days, manufacturers will choose to remove ENDS flavored products" – referring to devices – "where children can access them and from online sites that do not have procedures to check the products." Age, robust enough, "he said. declaration.
The mere threat of a ban, which he suggested two months ago, has led the past few days for electronic cigarette manufacturers to announce their own plans, going beyond what the F.D.A. laid out Thursday.
Juul Labs, by far the biggest seller of electronic cigarettes, announced Tuesday he suspended the in-store sale of his flavored capsules, with the exception of mint, menthol and tobacco, and closed his promotions on social networks. And he said that it would strengthen his requirements for online age verification. But he left the door open for the resumption of orders from thousands of convenience stores, gas stations and other outlets across the country if retailers respected age verification measures.
Nevertheless, public health advocates have expressed disappointment with F.D.A's new vaping measures.
"Does that mean a simple curtain with a sign like the one we saw at the entrance to the porn section in the video stores?" Asked Matt Myers, president of the Campaign for Tobacco-Free Children .
And the representatives of the convenience stores reacted with a slight surprise.
"This is not as serious as the commissioner originally asked," said Lyle Beckwith, spokesperson for the National Association of Convenience Stores, a professional group.
When asked if the new rules could be equitably interpreted as convenience stores able to sell flavored electronic cigarettes as long as the products are under the counter, out of sight and inaccessible to minors, Mr. Beckwith stated that he had no comments to make on this subject. possibility and added that legal counsel would consider it.
He noted, incidentally, that his teenage son had stated that his vaping peers were all pulling their pods from older children and not from convenience stores.
Azim Chowdhury, a lawyer who represents vape makers and vape shops, said the easiest way for stores to continue selling all the flavors without hiding the displays was to restrict entire stores to consumers aged 18 to 18. years and older, a policy adopted by many of its clients. already follows.
He noted that 18 is a floor, not a ceiling: in California, for example, consumers of tobacco and electronic cigarettes must be 21 years old.
"The F.D.A. seems to recognize the value of these products for adults, "he said. "My clients do not want kids to use them either. But adults also love the flavors.
Mr. Gottlieb insisted that the restrictions were related to a ban. "This policy will ensure that fruity flavors are no longer accessible to children at retail sites, that they are simple and planned," he said. "That's where they have access to electronic cigs and we intend to stop these sales."
The agency said it would provide more details on how to restrict access at a later date. But the commissioner said putting vape products under the counter would not be enough. "What we are considering is a separate room or a closed area," he said. "It must be a completely separate structure. A curtain will not cut it. "
Critics said that exempting menthol and mint electronic cigarettes from this restriction was misguided because of the large number of young vapers who buy them.
But Mr. Chowdhury envisioned Juul's preventive decision to limit the visible aromas to mint, menthol and clever tobacco. If indeed a ban on menthol cigarettes is promulgated, he states: "Juul is well placed to offer an alternative product to smokers who are accustomed to their menthol taste. Because Juul dominates the market, they should have an ultimate ban. "
Altria, RJ Reynolds, a subsidiary of British American Tobacco, and other major tobacco companies sold in the United States were not immediately available for comment. But they all clearly indicated to the F.D.A. that they will fight against any ban on menthol cigarettes – as they have done for many years.
Dr. Gottlieb, who was appointed by President Trump, occupies an unusual position for a Republican-nominated candidate. Its confirmation in May 2017 has drawn strong warnings from some public health advocates, including protests against its investments in Kure, a chain of vaping salons. These complaints escalated in July 2017, when Dr. Gottlieb extended the time limit for electronic cigarette companies to five years to meet the new standards.
The industry argues that by limiting sales of flavored electronic cigarettes, it will be harder for adults to reduce their health risks by replacing them with traditional combustible cigarettes.
"Flavors are important for swapping," said Dr. Philip Morris International scientist Dr. Moira Gilchrist, who wants to sell its IQOS-free burning device in the United States, with tobacco and menthol flavors, at a time when it's time to change. a visit to Washington for an FDA public meeting.
She added, "The focus should be on what should be done so that the 40 million men and women of the United States continue to smoke cigarettes."
The tobacco industry has struggled for many years to protect menthol, much to the chagrin of public health activists, especially the African-American community. Menthol is particularly popular among black smokers and black rulers have accused the tobacco industry of targeting African American communities in their marketing campaigns.
In a statement issued following the announcement of the ban, the NAACP, the National Urban League, the National Medical Association and the Council of African-American Tobacco Enforcement Leaders said a ban on menthol was expected since a long time.
"While we are saddened by the number of lives lost and new addicts over the past decade, we are delighted that the AF. going in that direction, "said Delmonte Jefferson, executive director of the National Network for African-American Tobacco Prevention. The group also congratulated the agency for taking flavored cigars.
"Little cigars like Black & Milds and Swisher Sweets are highly marketed to African Americans and are often cheaper in our neighborhoods," said LaTroya Hester, spokesperson for the network. "Many young black kids do not know that cigarillos are just as dangerous, so hopefully that will convey that message. This is a big step forward in protecting their health. It is time for our young people to take precedence. "
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