Policies Ending the Sale of Flavored Tobacco
State and Local Restrictions
States, cities, and counties are leading the way to protect their communities from flavored commercial tobacco products.
7 states and more than 370 localities have enacted restrictions on sales of flavored tobacco products.1,2
These actions have been taken to reduce initiation of use of nicotine products, protect youth, reduce disparities, and reduce health impacts.
These laws are not new. In 2017, the City & County of San Francisco passed the first local law prohibiting all types of flavored tobacco products. The tobacco industry funded an initiative to repeal the law, but San Francisco voters upheld this comprehensive ban at the ballot box in June 2018. Hundreds of cities or counties have passed similar laws.
In 2019, the first state law was passed by Massachusetts, followed by 5 state laws in Maryland, Rhode Island, New Jersey, New York, and Utah in 2020. Most recently, California passed its flavor restriction law in 2020. It took effect in 2022 after California voters strongly upheld the law at the ballot box.
Massachusetts and California's laws protect community health the most because they end the sale of all flavored tobacco products, including menthol cigarettes. At least 180 local regulations in these states also restrict the sale of menthol cigarettes.
The tobacco industry has challenged some of these laws in the courts, but in every case the laws have been upheld.
The tobacco industry has also tried to overturn some laws by pouring funds into voter initiative campaigns. Community and public health advocates have countered with effective education campaigns. Every time, voters have strongly rejected the initiatives at the ballot box and upheld the flavor restriction law.
Effectiveness of Flavored Product Restriction Policies
Results of local and state laws prohibiting the sale of flavored commercial tobacco products are being studied and show benefits on reducing youth use and overall use.
A 2020 U.S. Surgeon General's report3 found that cities, towns, and communities that have limited the sale of flavored tobacco products have seen the odds go down of residents, including young people, using any type of commercial tobacco products or trying flavored commercial tobacco products.
Flavor restriction laws have not had negative consequences for retailers. Economic analysis in states that banned the sale of flavored products, such as Massachusetts, New York, and Rhode Island, suggest that these bans did not lead to a reduction in the number of convenience or tobacco stores, employees, or wages.4
Resources and case studies on flavor restriction policies:
Public Health Law Center case studies
- U.S. Sales Restrictions on Flavored Tobacco Products: This document overviews state, cities, and counties that have restricted the sale of flavored commercial tobacco products (May 2023).
- Evaluating Flavored Tobacco Sales Restrictions: A Literature Review: A compilation of studies through 2022 on the impact of flavor restriction policies.
- San Francisco, Massachusetts, Edina, MN, and Chicago: Case studies on flavored tobacco sales prohibitions.
Campaign for Tobacco-Free Kids analysis
Policy Efforts in Washington State to Restrict Sales
Public health and community advocates have been working for years to restrict the sale of menthol and flavored commercial tobacco products in order to reduce initiation and address health disparities. These policies face strong opposition from the well-funded tobacco industry. This section provides an overview of legislative efforts that are ongoing:
- 2019: Governor’s Executive Order & State Board of Health emergency rule in response to the EVALI crisis banned all flavored vapor products (both nicotine and THC). 120-day ban from October 9, 2019 – February 7, 2020.
- 2020 legislative session: SB 6254 would have prohibited the sale of all flavored vapor products, plus other policy components. The bill was incomplete from its introduction because it did not address menthol cigarettes, flavored cigars, or other types of flavored tobacco products. The bill was further weakened by amendments and lost the support of community and public health advocates. The Senate moved the weakened bill forward on the last day of session, but no further action was taken in the House.
- 2021 legislative session: HB 1345 would have prohibited sale of all flavors in all tobacco and vapor products, plus many other policy components. A bill hearing was held in the House Commerce & Gaming Committee, but no further action was taken.
- 2022 legislative session: SB 5768 would have provided authority to the WA Department of Health (DOH) and the State Board of Health to regulate flavors in vapor products, as well as to regulate nicotine content in all commercial tobacco products, through rule-making. The bill received a hearing in the Senate Health & Long-Term Care Committee, and work was done on an amendment to refine DOH’s authority, but no vote was scheduled.
FDA Actions and Inactions on Menthol and Flavored Products
Menthol cigarettes are the only flavored cigarettes that were not banned in the 2009 Family Smoking Prevention and Tobacco Control Act. Since then, many advocacy organizations and public health agencies across the U.S. have pushed the FDA to prohibit all flavored tobacco products, citing abundant evidence that flavors attract youth and menthol products are responsible for more tobacco-related deaths, especially among Black Americans. The FDA failed to take meaningful actions and was sued in 2020 by the African American Tobacco Control Leadership Council for unreasonable delay in regulating menthol cigarettes.
The two proposed rules only apply to cigarettes and cigars. These rules would not limit menthol or other flavors in e-cigarettes or in newer heated tobacco products.
This federal rulemaking is behind schedule and still in progress.7
In mid-October 2023, FDA sent both rules to the White House Office of Management and Budget for final review and finalization. Tobacco companies are expected to sue when the final rules are issued.
Sampling of Media Coverage (in reverse chronological order):
- CNN October 24, 2022 "FDA takes ‘momentous’ step toward banning menthol cigarettes and flavored cigars"
- PBS Newshour April 29, 2022 “FDA proposal to ban menthol cigarettes is met with praise and criticism”. Report and interview with Carol McGruder is the co-chair of the African American Tobacco Control Leadership Council.
- PBS April 22, 2022 “Federal officials’ plan to ban menthol cigarettes prompts late lobbying blitz“
Analysis & Resources:
- Public Health Law Center May 2022 "Talking Points: the FDA's product standard prohibiting menthol as a characterizing flavor in cigarettes"
- Public Health Law Center "Menthol Ban: Highlighting the Facts and Rebutting Tobacco Industry Misinformation"
- "Health Equity: The Impact of Racial Marketing" webinar with Georges S. Benjamin MD and Keith Waloo, PhD. March 23, 2022 available on WA Post Live,
The rate at which Americans use tobacco has steadily fallen over the past five decades, but that progress has not been felt evenly across the country. Join Keith Wailoo, PhD, professor of history and public affairs at Princeton University and Georges C. Benjamin, MD, executive director of the American Public Health Association as they explore the tobacco industry’s concerted efforts to target African Americans with menthol cigarettes and the Food and Drug Administration’s impending ban on the product.
- Campaign for Tobacco-Free Kids. States & Localities That Have Restricted the Sale of Flavored Tobacco Products. July 2023. https://assets.tobaccofreekids.org/factsheets/0398.pdf
- Americans for Nonsmokers' Rights Foundation. Municipalities Prohibiting the Sale of Flavored Tobacco Products. https://no-smoke.org/wp-content/uploads/pdf/flavored-tobacco-product-sales.pdf
- U.S. Department of Health and Human Services. Smoking Cessation: A Report of the Surgeon General [PDF - 9.8MB] Atlanta: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, 2020 [accessed 2021 Jan 19].
- Tauras, J.A. & Chaloupka, F.J. (2023). The Economic Effects of Cigarette Sales and Flavor Bans on Tobacco Retail Businesses. Tobacconomics. https://www.tobacconomics.org/research/the-economic-effects-of-cigarette-sales-and-flavor-bans-on-tobacco-retail-businesses/
- The Food and Drug Administration: https://www.fda.gov/news-events/press-announcements/fda-commits-evidence-based-actions-aimed-saving-lives-and-preventing-future-generations-smokers
- New York Times. “F.D.A. Moves to Ban Sales of Menthol Cigarettes” April 2022. https://www.nytimes.com/2022/04/28/health/menthol-ban-fda.html
- Public Health Law Center. FDA Menthol Timeline. https://www.publichealthlawcenter.org/resources/fda-menthol-timeline