FDA’s Delayed Menthol Cigarette Ban Puts Focus on Local Laws

The FDA’s stalled effort to ban menthol cigarettes and flavored cigars is shifting attention to states, where health groups and the tobacco industry are jockeying for influence.

The Biden administration’s decision to postpone two final rules that would prohibit the sale of the tobacco products is pushing public health groups to work at the state and local level to fill in the gap. The organizations have criticized the Food and Drug Administration for pushing back its goal date several times since first proposing the product standards more than two years ago.

“We can’t rely on the president and on the feds to get this done, so we’re going to have to take it into our own hands and do what we can to protect the people that live in our community and our state,” said Cathy Callaway, senior director of state and local campaigns at the American Cancer Society Cancer Action Network.

More than 380 localities across 13 states and Washington, D.C., have passed restrictions on the sale of flavored tobacco products, with at least 190 limiting the sale of menthol cigarettes, according to the Campaign for Tobacco-Free Kids.

But while various states introduce legislation each year to limit or ban flavored tobacco products, they often face intense opposition from the tobacco industry.

Companies have sued states and localities over restrictions and filled statehouses with lobbyists. The Action on Smoking & Health reported 1,027 registrations for tobacco industry lobbyists or lobbying firms at the state level in 2024—an increase from 927 registrations in 2023 and 1,001 in 2021.

Local, State Actions

Anti-tobacco groups have already helped enact restrictions on menthol cigarettes and other flavored tobacco products in cities across the country.

“You’re likely going to see more activity at the state and local levels,” but the “bulk of the activity thus far has been at the local level,” said Julie Amajuoyi, lead senior staff attorney at the Public Health Law Center.

New York City, for example, only allows retailers to sell tobacco products that are unflavored or that have tobacco, menthol, mint, or wintergreen flavoring. Callaway said she hopes the city will soon expand this to prohibit menthol cigarettes.

At the state level, New York lawmakers are looking to advance legislation (AB3907, S2441) that would prohibit the retail sale of all flavored tobacco products and accessories, including menthol and fruit flavors.

New York Assemblymember Rodneyse Bichotte Hermelyn (D), the bill’s sponsor in the state assembly, said she is confident the legislation will pass this session. The bill is awaiting committee action in both chambers.

“With the FDA delaying a final rule on menthol cigarettes and flavored cigars, the State Legislature knows we need to step up to the plate,” Bichotte Hermelyn said in an emailed statement.

Enacting restrictions at the state level has proven to be difficult for anti-tobacco groups.

Tobacco companies “have a lot of money to make campaign contributions and they have a lot more power in statehouses than we do,” Callaway said.

Massachusetts is the only state that prohibits all flavored tobacco products in virtually all locations. Washington, D.C., has similar prohibitions. California bans most flavored products, except for flavored cigars, loose-leaf pipe tobacco, and hookah.

Vermont Gov. Phil Scott (R) in April vetoed legislation (S.18) that would have banned the sale of flavored tobacco products in the state. Scott argued the bill would conflict with the state allowing the sale of flavored alcohol and cannabis products, and that residents would still be able to purchase flavored tobacco products in New Hampshire and online.

Vermont state Sen. Virginia Lyons (D), the bill’s sponsor, said in an interview that she doesn’t think she will be able to secure enough votes in the state legislature to override the veto this session. Lyons attributed this to the tobacco industry’s influence, citing state disclosure data that showed companies like Altria and Reynolds American Inc. far outpaced anti-tobacco groups in formal lobbying spending between January and May.

Lyons said she plans to introduce the bill again in the state’s next legislative session, arguing it will “save a huge amount of money and health-care dollars,” while also “preventing addiction for kids going forward.”

“Legislators are doing their due diligence,” said David Spross, executive director of the National Association of Tobacco Outlets, regarding states that vetoed restrictions or are stalling on bills. “It’s no different than what happened with the federal menthol ban.”

“You’re taking away sales from licensed and regulated tobacco retailers,” he said, which “results in a negative economic impact for these stores and the community. NATO works with tobacco retailers and assisting its members in responding to tobacco-related legislation.

Challenging Restrictions

State and local flavor bans have also prompted the tobacco industry to challenge restrictions in court. Lawsuits are often brought under state and federal preemption grounds, challenges over flavored e-cigarette rules, and state taxes on cigarettes.

Top tobacco company, Altria Group Inc. hinted in a letter to the FDA about the impact on states and localities if there was a product standard banning menthol, writing it “will undoubtedly cost state and local governments billions in revenue, negatively impact the supply chain, and eliminate tens of thousands of jobs.” State and local authorities will also “be tasked with enforcing their own laws regarding unlicensed sales and illegal distribution and possession,” if a restriction is in place, Altria wrote on behalf of subsidiary company Philip Morris USA Inc.

California is one state that has been subject to lawsuits over its flavored tobacco restrictions at the state and local level. Tobacco company R.J. Reynolds in 2020 challenged the city of Los Angeles, San Diego, and Edina, arguing their restrictions are preempted by federal law.

The cases are now closed, but “courts essentially said states and localities have the authority to prohibit the sale of tobacco products and the flavor bans do not constitute tobacco products standards,” Amajuoyi said.

Reynolds, Altria, and Philip Morris didn’t respond to requests for comment.

Some cities are tackling regulations that would keep them from enacting their own provisions on tobacco regulation. Over a dozen Ohio cities in April challenged a state law that barred local tobacco regulations. Gov. Mike DeWine (R) vetoed the bill twice, but the House and Senate overrode it the second time.

“From a public policy standpoint, it’s a bad idea, but it’s also a violation of home rule, the city’s decision-making powers under Ohio’s Constitution,” said Columbus City Attorney Zach Klein (D).

The Franklin County Court of Common Pleas on May 17 ruled the law unconstitutional.

The US Department of Health and Human Services also faces a pending lawsuit from three public health groups for failure to follow a plan to ban menthol cigarettes.

Michael Bloomberg has campaigned and given money in support of a ban on flavored e-cigarettes and tobacco. Bloomberg Law is operated by entities controlled by Michael Bloomberg.