Banning Tobacco and Nicotine Flavors Continues Across State Legislatures

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State legislatures are in full swing with some states already starting to wrap up their legislative session.  Here are some noteworthy tobacco and nicotine legislative trends and developments at the state capitols.

The year started off when the Ohio State Legislature overrode the governor’s 2023 veto of statewide preemption of the sale of tobacco and other nicotine products.  The legislation was in response to some Ohio cities banning flavors in these products.  The legislature recognized that regulating tobacco and nicotine products is a matter of statewide concern and that prohibiting youth access is best accomplished with a uniform statewide policy.

Banning tobacco and nicotine flavors continues to be considered by state legislatures. Utah passed legislation to ban flavored vapor products other than menthol.  If the governor signs it, the legislation will take effect July 1, 2024.  Vermont’s flavor ban legislation has passed the senate and is currently in the house.  The bill would ban menthol cigarettes, all flavored vapor products and flavored nicotine pouches effective January 1, 2026.  Not currently included in the ban are flavored smokeless tobacco products. 

Other states considering flavor bans on all tobacco and nicotine products include Hawaii, Maine, Minnesota and Michigan.  Flavor ban legislation failed in New Mexico.

A few states are considering increases in tobacco and nicotine product excise tax increases.  Cigarette tax increase bills are pending in Hawaii, Nebraska, Michigan, Maryland, and Rhode Island. Some states are starting to consider how to define and tax heated tobacco products.  For example, Iowa has introduced a bill that distinguishes heated tobacco products from cigarettes and rather than apply the cigarette tax, taxes them at 50%.

An emerging issue in the states is the creation of state e-cigarette registries.  Currently, there are approximately 20 states that are considering this legislation. The introduction of these bills is in response to the uncertainty around the FDA Pre-Market Tobacco Product Application (PMTA) process and the proliferation of flavored disposable e-cigarettes that are on the market.

The FDA has not completed  processing applications for thousands of e-cigarette  and other nicotine products. The FDA has only approved the marketing of a few dozen products, making it unclear to retailers and the public of the regulatory status of a large number of products, such as those for which a PMTA was never filed, those for which a PMTA was timely filed and the application is awaiting an order, and those for which a PMTA was denied but the application remains pending for legal reasons.  These bills create a state-based directory that requires e-cigarette manufacturers to submit information to state tobacco regulators demonstrating that any e-cigarette being sold in the state is in compliance with FDA Regulations and Guidance.  Utah and Virginia have sent directory bills to the Governor for final review thus far in 2024. Alabama, Louisiana, Oklahoma and Wisconsin, have enacted legislation in previous years.

Over the next three months, there will be a much state activity, as each month around 10 states will be wrapping up their session.  NATO will continue to be engaged on state tobacco and nicotine-related legislative and regulatory members.

David Spross is the executive director of NATO, a tobacco retailing association based in Lakeville, Minnesota. Reach him at david.spross@natocentral.org.  To learn more about NATO, visit www.natocentral.org.

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