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Summary of VTA Recommendations to Reagan-Udall Foundation

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VTA PMTA Recommendations

  1. FDA must implement safeguards at the Center for Tobacco Products (CTP) to ensure that the scientific review process is insulated from external pressures and that CTP scientists are allowed to unapologetically follow the science.
  2. Immediately rescind the July 9, 2021 and August 17, 2021 process memos which resulted in the en masse denial of flavored ENDS products, restore the holistic review process and the primacy of the appropriateness for the protection of public health balancing test.
  3. Build the off-ramp from smoking by accelerating the authorization of ENDS products and using the full scope of CTP’s post-marketing order authority to monitor and control for youth concerns.
  4. Clearly articulate CTP’s use of enforcement discretion to work companies through the PMTA process, particularly for non-tobacco nicotine (i.e., synthetic nicotine) applications.
  5. Communicate with companies to seek additional information or corrections and avoid rejections based on administrative or technical failings and the needless litigation that follows.
  6. Establish defined testing methods for END products which create transparency and certainty.
  7. Eliminate redundant and unnecessary testing to streamline the PMTA process.
  8. Develop and publish a PMTA proposed regulation with a finite checklist of required information that is required for PMTA review.
  9. Equally fund research for identifying how ENDS products can be solutions for smoking, rather than simply identifying problems with ENDS products and youth.

VTA Regulations and Guidance Recommendations

  1. CTP should implement a Comprehensive Plan on tobacco and nicotine that includes a clear acknowledgment of the FDA’s commitment to:
    1. the continuum of risk related to tobacco products and a recognition that ENDS and modern oral nicotine products sit at the lower end of the risk continuum,
    2. promoting innovation of those products at the lower end of the risk continuum, particularly ENDS and modern oral nicotine products,
    3. promoting innovation in nicotine, particularly synthetic nicotine,
    4. a pure scientific review process,
    5. funding science to evaluate the benefits of ENDS and modern oral nicotine products,
    6. working with companies to facilitate the application review process,
    7. aggressively educating adult smokers on the benefits of trying ENDS products if they are otherwise unwilling or unable to quit smoking using other methods,
    8. using its enforcement discretion to allow products under review to remain on the market pending authorization reviews, and
    9. a streamlined process which will ensure prompt review of product applications.
  2. CTP should engage industry and other stakeholders in the guidance and regulation processes by:
    1. Converting its listening sessions to engagement sessions so that CTP personnel are encouraged to communicate, ask questions and engage with stakeholders during meetings;
    2. Reinstituting its public stakeholder workshops which bring together all stakeholders to provide input on key regulatory policies and strategies; and
    3. Establishing an additional technical advisory committee dedicated to newly deemed alternative nicotine products to have a more focused strategy for less harmful nicotine products
  3. CTP should issue proposed regulation or guidance on product standards that:
    1. Explicitly allows widely accepted statistical design methods of research, aggregate testing, and extrapolation for ENDS product stability testing, and
    2. Permits manufacturers to market safety and/or quality enhancements with 60-Day notice to FDA.  

VTA Enforcement Recommendations

  1. CTP must use its full authority to ramp up interdiction of illicit products at the ports.
  2. CTP needs to streamline and reprioritize its enforcement efforts, rather than focusing so much on generally ineffective retail level enforcement.
  3. CTP should publish list of NTN products currently under PMTA review to facilitate industry and FDA enforcement efforts.
  4. CTP should restructure its enforcement efforts, through a guidance document, to achieve the following altered enforcement priorities:
    1. Stopping the flow all disposables into the U.S. market for which no PMTA has been filed by interdicting products at the ports;
    2. Enforcing against other ENDS products for which no PMTA has been filed, first prioritizing tobacco-derived products which make up the bulk of the market and then NTN products (since the latter are only a fraction of the market);
    3. Enforcing against counterfeit and illicit products which grossly violate marketing standards, trademark laws, or otherwise have marketing campaigns directed at youth; and
    4. Enforcing against products for which CTP has issued marketing denial orders (MDOs) after a full scientific review consistent with requirements of the Tobacco Control Act, except of course, those subject to an FDA administrative stay or a court-ordered stay of enforcement.

VTA Public Education & Communication Recommendations

  1. CTP must loudly and repeatedly correct the public record that nicotine does not cause cancer and that ENDS products, in the words of CTP Director King “have markedly less risk than a combustible cigarette”;
  2. CTP must commit equal resources to conducting an aggressive public education campaign, targeted to the adult consuming public, on the dangers of smoking and the lower risks of ENDS and modern oral nicotine products, explaining the continuum of risk, and encouraging adult smokers who have been unable or unwilling to quit to try e-cigarettes; and
  3. CTP must end the misleading youth education campaigns that are designed to scare youth (and adults) with false statements regarding the risks of e-cigarettes.
Read VTA’s Full Comments (PDF)

VTA Insider November 2022

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Welcome to the inaugural edition of the VTA Insider, your industry focused briefing from the Vapor Technology Association.

The VTA Insider will keep you informed of critical issues impacting the nicotine products industry both in Washington, DC and in the states. We will cover regulatory developments, legislation, news of note and other industry insights. VTA will also share our analysis of what we as an industry need to do to grow and prosper.

Let’s Dive In.

1 big thing: GOP takes the House

The big picture: Although vote counting continues in some races, Republicans have officially picked up enough seats to take majority control in the House. But, with Republican control of the House floor, committees and the policy agenda, split party rule returns to Washington D.C. While this is often a recipe for legislative gridlock – split control can help focus leaders of both parties on solving problems that they were not motivated to address before. 

Why it matters: The vast oversight and investigation authority the new House majority will have will put a number of federal agencies and programs under the microscope. GOP leaders already have articulated a large number of issues on which they plan to conduct oversight and investigations: everything from the Afghanistan withdrawal, to COVID, to possible impeachment.

What’s next: VTA’s lobbying and public affairs teams will share their insights on what happened in the recent election and what we can expect to change in Congres in 2023 during VTA’s 2022 Post-Election Round Up webinar on November 30, 2022. Register for the webinar today.

Our thought bubble: VTA has spent the past year working on a bi-partisan strategy that would take serious strides in addressing both youth and adult access to flavored vaping products and the closely divided Congress will necessitate a bi-partisan approach. Also, VTA will be working with the new Congress to ensure they it understands the problems that FDA’s Center for Tobacco Products has had historically.

FDA under the microscope?

The big picture: This summer, FDA Commissioner Califf called for an independent review, by the Reagan – Udall Foundation (RUF), of FDA’s Center for Tobacco Products (CTP) and its handling of tobacco products. RUF was created by Congress “to advance the mission of the FDA…” and it is now taking a deep dive into the operations of the CTP.

Why it matters: The issues at CTP which VTA has been working to resolve for a number of years, particularly how CTP has handled e-cigarette PMTAs, are beginning to receive long overdue attention. All parties were able to submit comments to RUF and, suprisingly, some of the most troubling feedback has come from FDA staff. 

What they’re saying: Some CTP staff have been highly critical of how CTP has handled e-cigarettes and they lay bare some of the worst fears about what has been going on inside CTP. Here’s a sample of some of the more concerning comments from CTP staff:

  • “Politics are being permitted to drive the science and even limit or alter science-based decisions.”
  • “In cases where reviews are finished and scientific decisions are made they are also overruled by political agendas and pushed to change decisions.”
  • “…leadership pushes a “gotta get em” mentality onto staff, which is unsupportive of a reviewer’s fundamental duty to provide an unbiased review using the best available science.”
  • “FDA needs to use its authority … to refuse import of all disposable tobacco ENDS products that lack pre-market authorization. This would virtually eliminate youth access to disposables and address unauthorized, unsafe, and in many cases counterfeit disposable products.”

Go deeper: VTA was invited to present comments on needed changes to RUF’s independent tobacco expert panel in October and offered a number of specific recommendations, most notably stating the need for CTP to insulate itself from politics and external pressures in reviewing PMTAs and to “unapologetically” follow the science.

What’s next: RUF will complete its review and will publish a report with recommendations in December of this year.

Defending flavored vapes

The big picture: On Nov. 8, 2022, voters in California passed a ballot initiative (Proposition 31) upholding a 2020 law banning the sale of most flavored tobacco products. The next day, R.J. Reynolds (RJR), filed a federal lawsuit challenging California’s ban. On November 14, VTA filed an amicus brief with SCOTUS in support of a similar RJR case arguing that federal law preempts local and state flavor bans. These cases could have a big impact on local/state flavor bans across the country.

VTA argued that Supreme Court review is critical for economic and public health reasons:

By the numbers: The independent vapor industry comprises more than 10,000 companies across the U.S. VTA’s economists found that the independent vapor industry is responsible for generating more than 130,000 jobs. In new economic impact report VTA commissioned, experts found that a flavor ban would cause the loss of more than:

  • 99,000 jobs;
  • $5 billion in wages and benefits; and
  • $16 billion in lost economic output for the U.S.

What experts are saying: VTA also argued that leading tobacco-control scientists have challenged banning flavored e-cigarettes and have warned that decreasing availability of flavored vaping products harms the ability of adult smokers to quit smoking. Instead of blanket bans, these tobacco-control scientists endorse alternative time, place and manner restrictions for the sale of flavored vaping products.

The bottom line to SCOTUS: Permitting local and state governments to implement unscientific sales bans which directly interfere with the fundamental purpose of the TCA and which would overrule FDA’s decisions that a product is appropriate for the protection of public health, is not only unlawful, but is dangerous from a public health perspective.

What’s next: VTA will keep you updated as the litigation proceeds. 

Worth your time…

What we’re saying

VTA’s Executive Director at the ENDS US 2022 conference speaking on “PMTA: Lessons Learned.” Watch the video below.

In an excellent piece by Marc Gunter in Filter Mag entitled Can the Tobacco Control Debate Find Common Ground?:

“Some industry leaders are willing to accept regulation. Tony Abboud, the Executive Director of the Vapor Technology Association, which represents vape shops, says his group would accept reasonable restrictions on where e-cigarettes can be sold and how they can be marketed. Abboud also said: ‘We’ll sit down with anybody.’”

Worth the read

VTA Files Supreme Court Amicus Brief; Presents Expert Report on Economic Damage from Flavor Bans

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WASHINGTON, November 15, 2022 (Newswire.com) – On Nov. 8, 2022, voters in California passed a ballot initiative (Proposition 31) upholding a 2020 law banning the sale of most flavored tobacco products. On Nov. 9, 2022, R.J. Reynolds (RJR), filed a federal lawsuit challenging California’s ban as being unlawfully preempted by the Family Smoking Prevention and Tobacco Control Act of 2009, (TCA). Yesterday, the Vapor Technology Association (VTA) filed an amicus brief with the Supreme Court of the United States in support of a Petition for Writ of Certiorari in another RJR case asserting similar arguments against the earlier L.A. County ordinance banning all flavored tobacco products. Supreme Court review is critical for two reasons.

First, the “substantial effect on the Nation’s economy” created by the sale of tobacco products is of great significance. The passage of the TCA in 2009 led to the creation of a new, independent distribution chain of companies, including manufacturers, distributors, suppliers, and retailers, that has steadily grown outside of the traditional tobacco products industry, offering their customers non-combustible nicotine vapor products as alternatives to smoking cigarettes. According to a new economic impact report (prepared by John Dunham & Associates), the independent vapor industry comprises more than 10,000 companies across the United States and is responsible for generating more than 130,000 jobs and more than $22 billion in economic activity for the U.S. economy.

This industry would be devastated by unrestricted flavor bans, given its unique and substantial reliance on the sale of flavored vapor products to adult consumers. Importantly, the potential shutdown of close to 10,000 businesses, causing the loss of 99,158 full-time equivalent (FTE) jobs, the loss of $5,258,906,715 in wages and benefits, and the loss of $16,449,776,269 to the U.S. economy makes the issue before the Court incredibly important. In the state of California, where the majority of e-liquid manufacturers of the independent vapor products industry are based, losses would total approximately 6,925 FTE jobs, paying $445,565,776 in wages and benefits, and the economic output of the California economy would be diminished by $1,497,332,882 if flavored vapor products could not be sold. 

Second, since the passage of the L.A. County Ordinance – leading tobacco-control scientists have challenged the notion of banning flavored e-cigarette flavors and have warned that decreasing availability of flavored vaping products harms the ability of adult smokers to quit smoking cigarettes. Instead of blanket bans, these tobacco-control scientists endorse alternative time, place and manner restrictions for the sale of flavored vaping products.

Permitting local and state governments to implement unscientific bans that directly interfere with the fundamental purpose of the TCA and would overrule the FDA’s decision-making for products deemed appropriate for the protection of public health, is not only unlawful, but is dangerous from a public health perspective, in VTA’s view.

ABOUT VTA
The Vapor Technology Association is the U.S. industry trade association whose members are dedicated to sound science-based regulation and selling innovative high-quality vapor products that provide adult smokers with a better alternative to combustible cigarettes. VTA represents the industry-leading manufacturers of vapor devices, e-liquids, and flavorings, as well as the distributors and retailers, including hardworking American mom-and-pop brick-and-mortar retail store owners.

VTA Presents to Reagan-Udall Foundation Reviewing CTP

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Comments of the Vapor Technology Association

Presented by Tony Abboud, Executive Director

INTRODUCTION

Good morning.  The Reagan-Udall Foundation’s mission[1] of “modernization,… accelerating innovation and enhancing product safety” could not be better applied to any other product category within the FDA’s ambit of authority than less harmful nicotine products.

This review couldn’t have come at a more important time and Commissioner Califf should be applauded for calling for it and Director King should be applauded for embracing it. FDA’s new leaders have an historic opportunity to dramatically change public health in the U.S. by boldly correcting errors of the past, eliminating political interference in the scientific process, providing a clear roadmap for the approval of less harmful nicotine products, and accelerating innovation away from the deadliest product on the market – the combustible cigarette.

But, this will not happen, if at all, at a fast enough pace to save the lives of millions of Americans who still smoke cigarettes unless serious process changes are made.

What has the Agency done well?  

You have asked us to address three components and I will start with what the FDA has done well.

  1. In 2017, Commissioner Gottlieb announced a Comprehensive Plan for addressing tobacco and nicotine issues.  Foreseeing the challenges of PMTA compliance, Gottlieb extended the deadline for filing from 2018 to 2022 since the agency still needed to “issue foundational rules to make the product review process more efficient, predictable, and transparent for manufacturers.” The comprehensive plan also expressly acknowledged the continuum frisk and that ENDS products fall at the lower end of the risk continuum when compared to cigarettes.
  2. CTP issued an ANPRM on the important issue of flavors to examine their impact on initiation and on smoking cessation.
  3. CTP has effectively administered its Substantial Equivalence application process for reviewing new tobacco products.  

What has the Agency not done well?

Unfortunately, these positive steps have not led to the successful execution of CTP’s mission.

Since January 2020, CTP’s efficient management of the SE process has bizarrely resulted in the authorization of 600 new combustible tobacco products, 250 of which are new cigarettes. In contrast, FDA’s management of the PMTA process has authorized only 6 less harmful ENDS devices, some of which are antiquated technologies and/or have virtually no market presence.  How did this happen?

First, the FDA abandoned its Comprehensive Plan and did everything but create the “efficient, predictable, and transparent” process Gottlieb said was necessary. 

CTP never finalized the “foundational rule” for PMTAs before applications were filed and it acquiesced to a 2-year acceleration of the filing deadline notwithstanding the unavailability of that final rule. This forced companies to rely on non-binding guidance, rush scientific research and data collection, submit redundant applications, and conduct unnecessary testing. 

Second, CTP failed to apply the continuum of risk in its comparative assessment of ENDS to cigarettes and also failed to distinguish between open and closed ENDS products.

Third, CTP abandoned its ANPRM on flavors in 2018, ignoring the enormous body of science presented by all stakeholders, including VTA’s substantive review of all flavor studies.

Fourth, CTP altered its review process and standards AFTER applications had been accepted for substantive review, using those changes to deny countless PMTAs all without conducting that substantive review, and failed to balance all the prongs of the APPH test, choosing instead to use single alleged deficiencies to deny applications.

These actions plunged the entire category into chaos and CTP’s decisions into protracted litigation.

This was all driven by an exclusive focus on youth and flavors which has been directly criticized by the 15 past presidents of SRNT, the most esteemed group of tobacco-control scientists, as threatening the chances of adult smokers to quit. I’ll briefly explain one example of how the Agency’s prior interim leadership allowed outside influences to subvert the PMTA scientific process on this issue alone.  

Flavor Example

In August 2020, CTP’s Office of Science documented its process for reviewing applications for flavored ENDS products and explained that it anticipated approving such products as APPH.  At a June 11, 2021 public meeting, the Office of Science transparently explained the process and priorities it was using to review PMTAs.

Two weeks later, when FDA’s Acting Commissioner Woodcock testified before a Congressional committee on June 23, committee members demanded that Woodcock deny JUUL’s PMTAs and deny any flavored e-liquid PMTAs claiming thatwas her responsibility regardless of the science.

Immediately after the hearing, I learned from those inside the FDA that Woodcock injected herself on the  flavor issue. Two weeks thereafter, CTP documented Woodcock’s interjection in a now infamous July 9 “fatal flaw” memorandum, explaining that the Office of Science was “tasked” by the Acting Commissioner to implement a “new plan” to “take final action” on as many flavored ENDS applications as possible – a complete reversal of both the process and priorities they announced less than one month earlier.

The memorandum articulated a review process which imposed a new testing prerequisite, 11 months after the applications were filed. CTP created a new “presumption” that all flavored products are attractive to youth to justify the new requirement for long-term product specific studies on cessation and a heightened standard for flavored ENDS.  CTP’s scientists were forced to alter their process to ensure the blanket rejection of virtually all flavored applications and did so without even reviewing the applications and science submitted.  The process change effectuated a de facto policy change and as it was unfolding in September 2021, I heard from people inside FDA who were stunned that the Agency had changed its position “without any scientific support.”

This leads me to recommendations.

RECOMMENDATIONS

  1. CTP must implement safeguards to ensure that the review process is free of external pressures. I have only highlighted one of many examples. Unless the process is insulated, CTP will never be allowed to execute its mission.
  2. Unapologetically follow the science and announce approvals.  The Office of Science must be allowed to complete its reviews and when it authorizes applications, those decisions should immediately and loudly be announced to the marketplace. 
  3. Immediately reverse the fatal flaw memo and actually review the science presented.  This means not imposing a non-product-specific presumption regarding initiation (i.e. that ALL flavored products are attractive to youth) while demanding “product specific” data regarding cessation.
  4. Restore the primacy of APPH balancing test. This means treating the cessation and population benefits prong equally to the initiation prong.  This means conducting a holistic review and not singling out one set of data on which it justifies denials.
  5. Use CTP’s enforcement discretion to work companies through the PMTA process.  Virtually all PMTAs have been submitted on grossly accelerated timeframe. Working with companies that can comply with the requirements and providing them the time necessary to complete the required science ensures a stronger process. This particularly applies to FDA’s recently acquired non-tobacco nicotine authority. This also applies to smaller manufacturers who don’t have large scientific staff or resources.
  6. Avoid rejections based on administrative or technical failings.  CTP has refused to accept certain otherwise robust applications because of technicalities. In these cases, reviewers should be authorized to pick up the phone and get those technicalities cured, rather than plunge the agency into protracted and wasteful litigation
  7. Establish defined testing methods.  This should be done for HPHC testing and while ensuring those methods are consistent with normal human use.
  8. Eliminate redundant and unnecessary testing.  For example, biomarker studies and inhalation studies are irrelevant when companies have presented data showing a dramatic reduction (or absence) of toxins.
  9. Use the full scope of its post-marketing order authority. In balancing the APPH, CTP should rely on post-market surveillance and post-market consumer studies to monitor its authorizations and suspend or withdraw a marketing order if it finds new evidence would so justify it.
  10. Equally fund research proposals.  FDA funded research is critical to the review process. To date, the agency has only funded research purporting to identify problems, i.e., youth initiation. CTP should equally fund research on smoking cessation.

CONCLUSION

In conclusion, today, CTP is stuck, trapped if you will, managing a monstrous rule of its own creation.  It needs direction from this Foundation to impose a transparent set of requirements and to ensure strict and fair adherence to science-based decisions.  As a final note, CTP needs to appreciate that the entire application approval process is being made virtually irrelevant due to the Agency’s inability to stop the flow of products into this country from companies ignoring the regulatory process. It is our hope that the Reagan-Udall Foundation’s review will ultimately create an “efficient, predictable, and transparent” process and, in so doing, make real the promise of less harmful nicotine products.

[1] Mission of R/U and mission of the FDA: “The Reagan-Udall Foundation for the Food and Drug Administration is an independent 501(c)(3) organization created by Congress “to advance the mission of the FDA to modernize medical, veterinary, food, food ingredient, and cosmetic product development, accelerate innovation, and enhance product safety.”

Vapor Technology Association Questions FDA’s Youth Vaping Analysis

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Vape Trade Group Warns That Latest FDA Action Risks Jeopardizing Agency Credibility and Harm Reduction Mission

WASHINGTON, October 7, 2022 (Newswire.com) – Following the Food and Drug Administration’s release of the National Youth Tobacco Survey, Vapor Technology Association Executive Director Tony Abboud released the following statement: 

“Yesterday, the FDA, in coordination with the CDC, released new data from the 2022 National Youth Tobacco Survey (NYTS) on e-cigarette use among U.S. youth. The FDA represents the NYTS data to show that youth vaping ‘remains high,’ yet a deeper dive into the data show only a small uptick in experimental or infrequent use while regular use remains flat or is slightly down. 

“The fact remains that since 2019, according to the CDC, the number of high school students who have tried vaping (1 time in the last 30 days) has dropped by 50%, and the number of middle school students has plummeted by 70%. During that same time period, the number of high-school students who ‘frequently’ vape has dropped by 37% and the number of middle school students has dropped by 65%. FDA’s near single-minded focus on youth who experiment with vaping versus those who are frequent users ignores what clearly is a consistent trend of youth away from vaping products. Rather than focusing on removing products from the market in an attempt to impact youth vaping, the FDA should instead support common-sense regulatory reforms that would better restrict access to products instead. Simply removing products from the market is not the answer when those products are also proven to help adult smokers quit. 

“It is well documented that flavored vapor products help adult smokers to switch to less harmful vaping and study after study after study has confirmed this. Since 2010, when e-cigarettes became widely available in the U.S., smoking rates have declined by more than half. Tobacco use is down. Youth vaping is down. These are both good things and are not in dispute. Unfortunately, there are still 40 million Americans addicted to cigarettes. Every year, 500,000 die from smoking-related diseases and yet less than three percent of our kids are using vapes on a regular basis. The FDA’s failure to acknowledge this reality ignores the role vaping plays in harm reduction and smoking cessation, and puts more lives at risk.”

ABOUT VTA
The Vapor Technology Association is the U.S. industry trade association whose members are dedicated to sound science-based regulation and selling innovative high-quality vapor products that provide adult smokers with a better alternative to combustible cigarettes. VTA represents the industry-leading manufacturers of vapor devices, e-liquids, and flavorings, as well as the distributors and retailers, including hardworking American mom-and-pop brick-and-mortar retail store owners.

MEDIA CONTACT
press@vaportechnology.org

VTA Amicus Brief In Support of 5th Circuit Rehearing En Banc

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New Orleans, LA – September 9, 2022  – The Fifth Circuit granted the Vapor Technology Association’s (VTA) unopposed motion to file an amicus brief in support of Petitioners’ Petition for a Rehearing En Banc in the case Wages & White Lion Investments, a/k/a/ Triton Distribution v. FDA.

Recently, a panel of Fifth Circuit judges denied Triton Distribution’s appeal of the FDA’s market denial order (MDO) for its flavored e-liquid products in a 2-1 decision.  Thereafter, Triton filed a Petition for en banc review, asking the entire Fifth Circuit to reconsider the ruling. 

VTA’s amicus brief supports Triton’s request by explaining that it involves issues of “exceptional importance” necessitating review by the entire Fifth Circuit Court of Appeals.   VTA’s amicus brief highlights three key points:

  1. Economist John Dunham & Associates’ evaluation of the adverse economic impact that the ruling would have if it lead to the removal of all flavored open-system vaping products from the states comprising the 5th Circuit (Louisiana, Mississippi, and Texas);
  2. The leading tobacco-control scientists who have warned that removing flavors will deter adult smokers from quitting and have recommended limiting the sale of flavored vaping products to adult-only stores; and
  3. The results of VTA analysis of FDA’s compliance data between 1/1/20 and 6/30/22 which reveals:
    1. The rate of illegal youth sales of cigarettes and cigars are twice the rate of vaping products;
    2. Of all violations for youth vaping sales, only 3.61% occurred in true brick and mortar vape shops with nearly 80% occuring in non-age-restricted facilities; and
    3. 60% of all youth vaping sales violations involved traditional tobacco flavors (tobacco, mint, menthol) with less than 40% involving other flavors which the 5th Circuit’s ruling would adversely limit.

VTA’s full amicus brief + the economic impact report is available HERE.

Bloomberg Law Calls VTA Unlikely FDA Ally Copy

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DEEP DIVE

The FDA has gained an unlikely ally in its plans to ban menthol cigarettes—a leading vaping trade group that wants to see smokers switch to e-cigarette products.

The agency received hundreds of thousands of comments on its effort to target menthol and other flavored tobacco products that can make smoking harder to quit. The Vapor Technology Association, which represents an industry typically known for its combative relationship with the Food and Drug Administration’s Center for Tobacco Products, says it wants to see the proposal go through, so long as the FDA authorizes more e-cigarettes as an alternative.

“Removing menthol cigarettes from the marketplace is an important step forward, presuming that the agency does what it needs to do in terms of securing and providing alternative products that are legal and authorized and getting them introduced into the marketplace,” VTA Executive Director Tony Abboud said in an interview.

One proposed rule (RIN 0910-AI60) would prohibit tobacco manufacturers and retailers from making, distributing, and selling cigarettes containing menthol as a flavor. The second (RIN 0910-AI28) would ban all characterizing flavors, including menthol, in cigars.

Public health and anti-tobacco groups say the proposals would go far in the FDA’s efforts to reduce negative health outcomes and disparities fueled by products disproportionately used by Black Americans and other minority groups. The FDA has warned that menthol can make smoking more addictive and appealing, especially among youth.

The vaping industry has long framed its products as a way for smokers to transition away from combustible tobacco. But health groups say that offering products as an off-ramp for traditional cigarette and cigar users isn’t part of the FDA’s mandate, and that there’s not enough evidence for the agency to take an official stance on e-cigarettes as a reduced-harm alternative.

The FDA has said it likely won’t be able to complete its review of tobacco-based e-cigarette marketing applications until June 30, 2023—nearly two years after a court-imposed deadline of Sept. 9, 2021. It’s so far authorized 23 electronic nicotine products and recently ordered Juul Labs Inc. to remove its products from the US market, but subsequently stayed that order pending further review.

The agency said in an email that it couldn’t comment on a specific timeline for reviewing public input on the menthol proposals, but added that it plans to “move carefully and quickly in considering all public comments received and determining next steps to protect public health.”

The FDA said it may ultimately “decide to end the rulemaking process, to issue a new proposed rule, or to issue a final rule.”

Harm Reduction

The VTA said in comments to the FDA that it supports the menthol ban in cigarettes, but that it should do more to help adult smokers.

“VTA promotes regulation that can hasten the reduction in smoking cigarettes and that focuses on the critical importance of tobacco harm reduction as an essential public policy objective,” the group said in its letter.

In addition to the proposed ban, the FDA should “simultaneously accelerate the review and approval of menthol vaping products and other flavored vaping products,” Abboud said in an interview.

“If you’re going to take away cigarettes from a large population of consumers that are addicted to those products, you must provide them alternatives,” Abboud argued.

“Otherwise, we fear the worst happens,” he added, noting 2021 research cited by the FDA that estimates nearly 46% of menthol smokers ages 35 to 54 would become non-menthol tobacco cigarette smokers after a ban.

“That is not the best public health outcome that we can have,” Abboud said. “When you think about how popular menthol cigarettes are, the goal is to get them off of cigarettes altogether.”

Youth Risks

Tobacco policy analysts say there isn’t clear evidence that e-cigarettes is a less harmful alternative, and that such benefit must be balanced with the risks that youth will become smokers through vaping.

In 2021, roughly 39% of middle- and high-school smokers in the US reported frequently using e-cigarettes, compared to 19% for cigarettes and nearly 21% for cigars, according to the Centers for Disease Control and Prevention’s annual National Youth Tobacco Survey.

The only people likely to benefit from flavored e-cigarettes as a reduced-harm alternative are current cigarette smokers, Joanna Cohen, director of Johns Hopkins University’s Institute for Global Tobacco Control, said.

“It’s not reduced harm when you’re not using any tobacco product,” said Cohen, who recently served as a voting member on the FDA’s Tobacco Product Scientific Advisory Committee.

Joelle Lester, director of Commercial Tobacco Control Programs at Mitchell Hamline School of Law’s Public Health Law Center, said that while e-cigarette companies have argued the “potential” for their products as a “harm reduction strategy or cessation strategy, they haven’t demonstrated it to the FDA.”

“We don’t have to wonder about the harm for youth initiation or the role that menthol plays, because we know a lot about that already,” Lester said. “I don’t think that those should hold equal weight.”

Health Disparities

Public health groups say that the FDA should move ahead quickly with the menthol and flavor bans as a pivotal step forward to address health disparities.

“FDA’s public health mission requires it to finalize the proposed rule to permit its life-saving benefits to be realized as quickly as possible,” the Campaign for Tobacco-Free Kids and the American Lung Association said in a joint letter to the FDA along with more than 100 other patient advocacy and medical groups.

They added that the tobacco industry “has targeted Black Americans with marketing for menthol cigarettes for decades,” and that “Black Americans suffer a disproportionate toll of the disease and death caused by menthol cigarettes.”

“By increasing cessation in these communities, the proposed rule will reduce smoking-related health disparities and increase health equity,” they added.

In a separate letter on the proposed flavored cigar ban, the groups said that these products use flavors to “help mask the harshness of cigars,” making them especially attractive among youth. They added that the tobacco industry “targets Black youth with cheap, flavored cigars,” resulting in a “disproportionate impact on underserved populations.”

Nearly 85% of non-Hispanic Black smokers report using menthol cigarettes, compared with just 30% of non-Hispanic White smokers, according to the FDA. The agency has also said that in 2020, the 30-day cigar smoking levels for non-Hispanic Black high school students were twice as high as White students.

Cohen said it’s “long overdue to get menthol cigarettes banned in this country,” as places like Canada and the European Union have already instituted similar policies.

Lester said that the FDA should also be “directing additional cessation support for whom this is an opportunity to quit smoking altogether,” especially communities of color that tobacco companies have historically targeted in their product marketing.

“It’s the FDA’s responsibility to deliver sufficient support in the same sort of targeted careful way,” Lester added. “We want to make sure we’re reaching the most affected communities.”

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.

(Updated with comments on the proposed cigar ban in the 26th paragraph.)

To contact the reporter on this story: Celine Castronuovo at ccastronuovo@bloombergindustry.com

To contact the editors responsible for this story: Alexis Kramer at akramer@bloomberglaw.com; Cheryl Saenz at csaenz@bloombergindustry.com

Celine Castronuovo

Reporter

VTA Submits Comments in Favor of FDA Menthol Ban for Combustible Tobacco

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Urges Agency to Pursue Ban While Preserving Market for Properly Regulated Vaping Products

WASHINGTON, August 3, 2022 (Newswire.com) – Today, the Vapor Technology Association (VTA) submitted official comments to the U.S. Food and Drug Administration (FDA) in support of the FDA’s proposed tobacco product standard banning menthol-flavored cigarettes and strongly encouraged the FDA to continue to build the necessary offramp to menthol and flavored vaping products for smokers to access effective smoking alternatives.  VTA Executive Director Tony Abboud issued a statement summarizing the filing: 

“The menthol cigarette rule could be one of the most significant steps that the FDA has taken to protect public health in the United States. It has the potential to dramatically reduce cigarette smoking – the leading cause of death and disease of Americans – but only if the Agency heeds the warning of scientists that menthol smokers must have access to less harmful vaping and other alternative nicotine products. Without that, the rule threatens to turn what should be a public health victory into a weak half measure that, in the absence of other decisive action from the FDA, will fall far short of the benefits the Agency claims.

“FDA’s own proffered scientific experts acknowledge that at least 50%, and in some cases a larger percentage, of smokers will continue to smoke cigarettes or other combustible products after the menthol cigarette rule is put into effect unless provided access to effective alternatives. To fulfill its own harm reduction mission, the agency must use its PMTA process to ensure a rational, regulated legal marketplace with suitable, less harmful non-combustible alternatives.”

ABOUT VTA
The Vapor Technology Association is the U.S. industry trade association whose members are dedicated to innovating and selling high-quality vapor products that provide adult smokers with a better alternative to combustible cigarettes. VTA represents the industry-leading manufacturers of vapor devices, e-liquids, and flavorings, as well as the distributors and retailers, including hardworking American mom-and-pop brick-and-mortar retail store owners.

MEDIA CONTACT
press@vaportechnology.org

VTA Files Comment Supporting Menthol Cigarette Ban

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VAPOR TECHNOLOGY ASSOCIATION SUBMITS COMMENTS IN FAVOR OF FDA MENTHOL BAN FOR CIGARETTES

Urges Agency to Pursue Ban While Preserving Market for Properly Regulated Vaping Products

WASHINGTON, August 02, 2022 (Newswire.com) – Today, the Vapor Technology Association (VTA) submitted official comments to the U.S. Food and Drug Administration (FDA) advocating in support of FDA’s proposed tobacco product standard that would ban menthol flavored cigarettes and strongly encouraging the FDA to continue to build the necessary offramp to menthol and flavored vaping products for smokers to access effective smoking alternatives.   

“The menthol cigarette rule could be one of the most significant steps that the FDA has taken to protect public health in the United States.  It has the potential to dramatically reducing cigarette smoking – the leading cause of death and disease of Americans – but only if the Agency heeds the warning of scientists that menthol smokers must have access to less harmful vaping and other alternative nicotine products. These limitations threaten to take what should be a public health victory and turn it into a half measure that, in the absence of other decisive action from the FDA, will fall far short of the benefits the Agency claims.”

“FDA’s own proffered scientific experts acknowledge that at least 50%, and in some cases a larger percentage, of smokers will continue to smoke cigarettes or other combustible products after the menthol cigarette rule is put into effect unless provided access to effective alternatives. To fulfill its own harm reduction mission, the agency must use its PMTA process to ensure a rational, regulated legal marketplace with suitable less harmful non-combustible alternatives.”

Read the full comment here.

VTA Raises Concerns Over Reported FDA Product Market Denial for JUUL

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Leading Trade Association Critical of Decision That Will Lead to Increase in Smoking

WASHINGTON, June 22, 2022 (Newswire.com) – Following media reports of a decision by the Food and Drug Administration to issue a product market denial for JUUL Lab’s vaping products, Vapor Technology Association Executive Director Tony Abboud released the following statement: 

“The reported denial of JUUL’s PMTA application is stunning. While the company has certainly been at the epicenter of conflict, the amount of rigorous, peer-reviewed science supporting their products’ ability to help smokers quit, raises serious questions about the FDA’s subjective balancing test and whether public pressure campaigns will steer science policy in the future.”

ABOUT VTA
The Vapor Technology Association is the U.S. industry trade association whose 1,000+ members are dedicated to innovating and selling high-quality vapor products that provide adult consumers with a better alternative to traditional combustible cigarettes. VTA represents the industry-leading manufacturers of vapor devices, e-liquids, flavorings, and components, as well as the largest wholesalers, distributors, importers, and e-commerce retailers, in addition to hundreds of hardworking American mom-and-pop, brick-and-mortar retail store owners throughout the United States.

MEDIA CONTACT
press@vaportechnology.org

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