21 Senators Send Letter to FDA Asking About Proposed Flavored Cigar, Menthol Cigarette Bans

Last week, nearly two dozen U.S. Senators, all Democrats, signed a letter sent to the U.S. Food & Drug Administration (FDA) asking for updates about the status of proposed bans on flavored cigars and menthol cigarettes.

The letter was sent on the one-year anniversary of FDA’s announcement of two proposed rules, one that would ban flavored cigars and one that would ban the sale of menthol cigarettes. The letter—written by Sen. Chris Van Hollen, D-Md., and Jeff Merkley, D-Ore.—asked Dr. Robert Califf, commissioner of FDA, for updates about how soon the agency plans on announcing the bans and what those bans might entail.

There are four specific questions which the Senators say they would like answered in the next 30 days:

1. When does the FDA anticipate that it will finalize these rules regarding the ban on menthol cigarettes and flavored cigars?
2. How does the FDA plan to coordinate with other federal agencies for the purposes of enforcing these bans and increasing consumer and retailer awareness?
3. How does the FDA plan to address attempts from cigarette manufacturers to circumvent the ban on menthol cigarettes by offering “fresh” or “crisp” alternatives to menthol?
4. Are there additional resources that Congress can provide to facilitate the enforcement of these rules once finalized?

In March, Brian King, the director of FDA’s Center for Tobacco Products, said the agency planned to announce final rules of the two bans this fall. The agency has previously said that it intends for a one-year compliance period.

FDA formally announced plans to ban both flavored cigars and menthol cigarettes two years ago, the conclusion to a citizen’s petition that was filed in 2013. The petitioners argued to a federal court that FDA had not met the requirements in responding to the citizen’s petition to ban menthol cigarettes, which the judge agreed with. FDA was ordered to respond to the petition by April 29, 2021. It did so by saying that it was planning on banning both flavored cigars and menthol cigarettes, plans that it said would be announced within a year.

Nearly a year to the date—April 28, 2022—FDA announced that it was moving forward with both proposed regulations, starting the formal rulemaking process that the agency must follow when it crafts new regulations. This included creating proposed rules, as well as allowing for comments about the proposed rules. The commenting period ended in early August 2022.

So far, FDA has given no indication that larger flavored cigars would be exempt from the flavored cigar ban.

California and Massachusetts are the only states with bans on the sale of flavored tobacco products, though both bans have exemptions for some flavored cigar sales.

In Massachusetts, the exemption allows for specialty cigar lounges to continue to sell flavored cigars, while California’s allows for flavored cigars that have a wholesale price of $12 to continue to be sold.

Companies have taken different approaches in response to the bans, but their impacts are being felt. For example, Drew Estate announced that it would no longer sell three lines—Ambrosia, Isla del Sol and Tabak Especial—to California retailers. That said, the company is still selling its popular ACID line. Drew Estate told retailers it believes that the rest of its portfolio would not be banned in California “as they do not have a distinguishable taste or aroma that could be deemed a ‘characterizing flavor.’”

Meanwhile, some cigarette companies have responded to the California law by replacing menthol cigarettes with new cigarettes that are said to contain a synthetic cooling agent that could produce a similar effect as menthol.

The following Senators signed the letter:

1. Sen. Tammy Baldwin, D-Wis.
2. Sen. Richard Blumenthal, D-Conn.
3. Sen. Sherrod Brown, D-Ohio
4. Sen. Tom Carper, D-Del.
5. Sen. Chris Coons, D-Del.
6. Sen. Tammy Duckworth, D-Ill.
7. Sen. Dick Durbin, D-Ill.
8. Sen. Maggie Hassan, D-N.H.
9. Sen. Martin Heinrich, D-N.M.
10. Sen. Mazie Hirono, D-Hawaii
11. Sen. Edward J. Markey, D-Mass.
12. Sen. Jeff Merkley, D-Ore.
13. Sen. Patty Murray, D-Wash.
14. Sen. Alex Padilla, D-Calif.
15. Sen. Jack Reed, D-R.I.
16. Sen. Brian Schatz, D-Hawaii
17. Sen. Tina Smith, D-Minn.
18. Sen. Chris Van Hollen, D-Md.
19. Sen. Elizabeth Warren, D-Mass.
20. Sen. Sheldon Whitehouse, D-R.I.
21. Sen. Ron Wyden, D-Ore.

Featured Image By Scrumshus (Own work) [Public domain], via Wikimedia Commons

Charlie Minato

I am an editor and co-founder of halfwheel.com/Rueda Media, LLC. I previously co-founded and published TheCigarFeed, one of the two predecessors of halfwheel. I have written about the cigar industry for more than a decade, covering everything from product launches to regulation to M&A. In addition, I handle a lot of the behind-the-scenes stuff here at halfwheel. I enjoy playing tennis, watching boxing, falling asleep to the Le Mans 24, wearing sweatshirts year-round and eating gyros. echte liebe.