In this amount of time, President Donald Trump triggered a temporary removal of flavored vaping cartridges and increased the federal minimum age to buy tobacco from 18 to 21, and the first statewide ban on menthol-flavored tobacco products became law.
While vaping grabbed most of the headlines, the action on menthol-flavored tobacco and nicotine products in Massachusetts and the increase in the minimum buying age may prove to be more consequential for convenience retailers and businesses all along the tobacco supply chain.
In overall retail sales and volume, vaping today accounts for just 2% of the larger tobacco category, while annually, menthol alone is a $33 billion business, or one-quarter of overall tobacco sales.
Meanwhile, 2% of tobacco customers are 18-20 years old; their absence will compound a series of regulatory decisions that could severely affect retailers’ businesses, according to Statista and the Centers for Disease Control and Prevention Just how the dominos fell is confounding. The combination of a compressed time frame, a public health scare and Trump’s own chaotic policy style may have set in motion the $1 billion perfect storm of lost excise taxes annually just for menthol products in Massachusetts, according to Governing.com.
Meanwhile, it was a big win for public health advocates and set a chilling precedent for tobacco consumers, the c-store channel and law enforcement having to cope with the consequences.
For example, the loss of menthol in Massachusetts will be “a big product decrease” for retailers in the state. “So the question is, how do you make up that revenue?” says Anna Bettencourt, senior category manager for VERC Enterprises, a 30-store chain based in Duxbury, Mass. “I don’t think that you can.”
The hope for cartridges, at least, is that flavors may return after a federal new-product review runs its course, but the overall outlook is tenuous.
After almost two dozen interviews and an extensive review of public documents and news reports, CSP has chronicled nicotine’s latest chapter, uncovering a sequence of decisive strikes, knee-jerk reactions and unlucky missteps that have thrust not only vaping but also tobacco’s most substantive pillar—menthol—into uncertainty.
On Sept. 11, 2019, President Trump and the first lady stepped into the controversy surrounding vaping products.
Started by a Tweet
On Sept. 6, 2019, the U.S. Centers for Disease Control and Prevention (CDC) held an alarming press conference to discuss an outbreak of dozens of lung illnesses in 33 states, including at least three deaths, all tied to the use of vaping devices.
Three days later, first lady Melania Trump tweeted her concern over the growing number of young people vaping: “We need to do all we can to protect the public from tobacco-related disease and death, and prevent e-cigarettes from becoming an on-ramp to nicotine addiction for a generation of youth.”
I am deeply concerned about the growing epidemic of e-cigarette use in our children. We need to do all we can to protect the public from tobacco-related disease and death, and prevent e-cigarettes from becoming an on-ramp to nicotine addiction for a generation of youth. @HHSGov— Melania Trump (@FLOTUS) September 9, 2019
She caught the ear of the president, who then ignited a series of regulatory moves that changed the face of tobacco retail.
On Sept. 11, the president, first lady and U.S. Department of Health and Human Services Secretary Alex Azar brought the press into the Oval Office. This meeting is one of the first to blend youth vaping with the outbreak of lung illnesses.
“Vaping has become a very big business, as I understand it, like a giant business in a very short period of time,” Trump said. “But we can’t allow people to get sick, and we can’t have our youth be so affected. People are dying with vaping.”
The FDA announced that the Trump administration would push to take flavored e-cigarettes off the market, including mint and menthol flavors, pending a U.S. Food and Drug Administration (FDA) review through its premarket tobacco application (PMTA) process.
In a later statement, Azar formalized the plans. “The Trump administration is making it clear that we intend to clear the market of flavored e-cigarettes to reverse the deeply concerning epidemic of youth e-cigarette use that is impacting children, families, schools and communities,” he said.
Azar cited preliminary data showing that more than a quarter of high school students were current e-cigarette users in 2019, and “the overwhelming majority” of youth e-cigarette users used fruit and menthol or mint flavors.
Two days later, Trump followed up the meeting with a tweet: “While I like the Vaping alternative to Cigarettes, we need to make sure this alternative is SAFE for ALL! Let’s get counterfeits off the market, and keep young children from Vaping!”
Massachusetts Gov. Charlie Baker signed into law one of the nation's strictest rules on menthol.
Bans and Lawsuits
At about the same time as the CDC media event and Trump’s public statements, state governors stepped into the fray. On Sept. 4, Michigan Gov. Gretchen Whitmer signed an executive order to ban the sale of flavored e-cigarettes, citing concerns over youth vaping. “And right now, companies selling vaping products are using candy flavors to hook children on nicotine and misleading claims to promote the belief that these products are safe,” she said.
In a little more than a month, seven more states—Massachusetts, Montana, New York, Oregon, Rhode Island, Utah and Washington—would use some form of executive order or health decree to ban or heavily restrict vaping products. None of these restrictions included menthol, at least initially. Montana Gov. Steve Bullock was driven by a desire to protect the health and safety of children and enable health officials to learn more about youth nicotine use, says Marissa Perry, his communications director.
Also during this time, lawsuits from various tobacco and vaping groups would emerge and, in some states, result in an injunction blocking enactment of the new rules.
Of all the states, Massachusetts’ moves on vaping were the most aggressive from the start. Beginning with a September executive order, Gov. Charlie Baker temporarily banned all vaping products, not just flavored vape.
The governor’s move reflected a statewide culture of regulatory overreach, according to critics. Jon Shaer, president of the New England Convenience Store & Energy Marketers Association (NECSEMA), Stoughton, Mass., says almost every municipality in Massachusetts has a health board that can promulgate new rules and regulations on a whim. As a result, 175 communities within the state have implemented some form of independent tobacco tax or regulation.
As the number of regulations began to build on a local level, the bar to reach on a state level became lower, Shaer says.
In remarks to the press, Baker tied the growing use of e-cigarettes and marijuana vaping products to reports of serious lung illness among young people. “The purpose ... is to temporarily pause all sales of vaping products so that we can work with our medical experts to identify what is making people sick,” he said.
While the step to ban all vape products was aggressive, the notion of any form of statewide retail restrictions on menthol products was far from certain.
Vape proposals brought out protesters in Boston, Dallas and Washington, D.C.
Part of the phenomenon that led to Massachusetts banning menthol tobacco products at most retail establishments was the enormous political wave developing around vape. In its September 2019 issue, Time magazine named vaping “The New American Addiction.”
Of course, the safety concerns—nicotine addiction notwithstanding—existed as far back as the 2000s, when the first open-vaping systems appeared. But vaping became a public health discussion after a complex series of developments, including the growing popularity of closed-system vaping devices, the spike in youth vaping, concern mounting from parents and school administrators, the reaction of local and federal health officials and the political fallout.
Closed or pod-based systems use prefilled pods, also called cartridges, which are easier to use than earlier open systems. C-stores became a dominant means of distribution for these products, according to retail research firm Management Science Associates (MSA).
The convenience channel accounts for 82% of all vape sales in the United States, says Don Burke, senior vice president of Pittsburgh-based MSA.
“That’s a strikingly high figure when compared to the fact that convenience accounts for 73% of all cigarette sales,” he says. Overall, the U.S. cartridge business grew from a value of $118 million in 2015 to more than $200 million in 2019, according to Grand View Research, San Francisco.
As the vaping business grew, the FDA developed a process by which it would authorize the use of vaping devices, which included setting up the PMTA structure. However, until the agency’s May 12, 2020, deadline for the submission of those applications, an FDA guidance allowed products in distribution before Aug. 8, 2016, to stay on the market.
Researchers began seeing a spike in the prevalence of youth vaping. The past three years of the National Youth Tobacco Survey show distinct increases in the number of youth vaping—as many as 6.2 million in the 2019 survey.
“I see it firsthand with my friends [who are] addicted, and they’re getting jittery in class and they can’t even focus because they need to go take a vaping break,” says Arsima Araya, a 17-year-old junior at Glenbard North High School in Carol Stream, Ill. Araya, an anti-vaping advocate, says she found out about the dangers of vaping when she was working as an intern on a service project for Illinois State Rep. Deb Conroy (D-Villa Park).
Gregg Wieczorek, principal of Arrowhead Union High School in Hartland, Wis.—a suburb of Milwaukee—says vaping started becoming a problem at his school about two and a half years ago. Wieczorek, who has been principal of Arrowhead for 27 years, estimates about 27%-28% of his school’s 2,100 students are regularly vaping—a figure right around the national average.
He’s worried about the effect of the high nicotine levels: “[Students are] just so addicted they can’t give it up, and even though people are dying, they still can’t give it up.”
In Illinois, State Rep. David McSweeney (R-Barrington Hills) co-sponsored a state bill to ban flavored vape products. He was one of the few Republicans who supported raising the smoking age in Illinois to 21, prior to the federal move.
“The consensus now is there are major, major concerns about vaping, but we don’t know the full impact long term that we do [know] for smoking,” McSweeney told CSP “so I err on the side of caution and believe it’s better to ban it now.”
The local political and regulatory fallout also began, leading to new laws in big cities such as San Francisco, Chicago, New York and Minneapolis. Such laws included flavor restrictions at retail, stricter tobacco-licensing policies and zoning laws banning sales next to schools.
National policymakers began to react. Scott Gottlieb, then commissioner of the FDA, voiced his concerns and the agency followed suit, issuing more than 8,600 warning letters and more than 1,000 fines to both online and brick-and-mortar retailers. It also sent manufacturers warning letters, many in collaboration with the Federal Trade Commission (FTC), that resulted in the removal of dozens of e-liquid products resembling kid-friendly juice boxes, cereal and candy.
Will Vape Survive?
In a vape shop in downtown Chicago, a 24-year-old cashier who did not want to be identified tells CSP that he’s looking for another job. “It’s a dying industry,” he says. On the store’s shelves, packs of Juul mint pods are priced almost double—$34.99 compared with $18.99 for other branded pods—because they’ll soon be gone from the store’s inventory.
The vaping industry, however, is much more bullish on its chances.
“Vaping will survive,” says Tony Abboud, executive director of the Vapor Technology Association, Washington, D.C. “Too many people are committed to the product.”
Other products with similar regulatory paths:
Amid public pressure, manufacturers and retailers responded. Juul Labs, the dominant electronic cigarette brand, according to MSA data, pulled its four flavored pods from sale at retail and changed its leadership. This came after one of the country’s largest tobacco manufacturers, Richmond, Va.-based Altria Group, made a $12.8 billion minority investment in Juul.
“We must reset the vapor category by earning the trust of society and working cooperatively with regulators, policymakers and stakeholders to combat underage use while providing an alternative to adult smokers,” said K.C. Crosthwaite, Juul’s new CEO. Major retailers such as Walmart and Walgreens also took flavored e-cigarettes off their shelves.
Despite their investment in the category, retailers can see both sides of the issue. “Vape products need to be kept available for legal adult consumers,” says Kraig Knudsen, category manager of tobacco products for Circle K’s Heartland division. “At the same time, we need to keep them out of the hands of underage users. Prohibition of these products will not achieve either of these goals.” Knudsen pointed out that he was sharing his personal opinion rather than speaking for Circle K’s parent company, Laval, Quebec-based Alimentation Couche-Tard.
The best way to minimize youth access, Knudsen says, is with strict age-verification processes on sales transactions. “Respected retailers … are committed to being 100% compliant with all tobacco laws, especially in the area of age verification,” he says. “As an industry, we do a pretty good job at this.”
Unfortunately, politics are always present, he says. “Sometimes the media and politicians are quick to jump on a topic and make statements about things that they do not understand in order to get a quick sound bite, or to gain political favor,” Knudsen says. “At the same time, they are very slow, or unwilling to make corrective statements once their initial comments are proven to be incorrect, or intentionally misleading. This creates consumer confusion.”
McSweeney says he was not motivated by politics in backing the Illinois vaping bill; rather, he was concerned about underage vaping. “That’s part of my motivation here is to make sure that it doesn’t get in the hands of children long term,” McSweeney says. “Where the politics are is: How far do you go? Will it be with children or will it be broader?”
He also is concerned about how negative health effects could cost the state more money in the long term.
Those representing the convenience channel have emphasized that whatever policymakers decide regarding flavors, they must maintain a level playing field among retail channels.
Doug Kantor, a partner with Washington, D.C.-based Steptoe & Johnson LLP, which represents NACS, says the association opposes laws that
would limit certain tobacco products to 21-and-older businesses. That would be making economic rather than health choices, he says, and points to studies that show c-stores are better at preventing underage e-cigarette sales than other sectors of retail.
Regulation, however, is not averse to a robust private sector—it enables it, says Joshua Sharfstein, a former FDA deputy commissioner. He says if manufacturers marketed and sold e-cigarettes in a way that strictly focused on people wanting to quit, it would be “enormously helpful.” He fears that a lack of regulation may lead to consequences such as youth addiction.
“Having a regulated industry may change what the industry looks like a little bit, but it is not in the long run bad for the industry,” Sharfstein says.
Flanked by counselor Kellyanne Conway and Health and Human Services Secretary Alex Azar, President Donald Trump presides over a gathering of vape stakeholders.
In the weeks following the September declarations to crack down on flavored e-cigarettes, the president appeared to waiver. According to The Washington Post, internal polls showed Trump supporters who vaped would turn against the president if he followed through with a ban. Trump’s campaign manager, Brad Parscale, called the potential move a “political loser.” Some of Trump’s advisers also had ties to the vaping industry, applying more pressure, the Post reported.
With a formal proposal before him, the president reportedly balked, putting the entire vape discussion in limbo. In early November, he tweeted plans to meet with vaping industry representatives, medical professionals and state representatives “to come up with an acceptable solution to the vaping and e-cigarette dilemma.”
On Nov. 18, Trump told reporters during a White House lawn interview that he was more intent on raising the legal buying age for vaping products to 21 vs. focusing on flavors.
Besides the internal pressure, Trump faced a public outcry. Before and after his comments, vaping advocates held rallies drawing hundreds of people in Dallas and Washington, D.C.
“Now that people sort of woke up, they’re fighting back. And when you have this many people who casually vape or are very serious about it, [regulators] can’t win,” says Paul Coskun, founder of We Vape We Vote.
Vaping has always been a “consumer movement,” says Alex Clark, CEO of the Consumer Advocates for Smoke-Free Alternatives Association, Plattsburgh, N.Y. “The entire industry has grown from that spirit, not just from the desire to make the products better, but to help everybody who continues to smoke,” according to the association.
On Nov. 22, several major stakeholders gathered at the White House for a “listening session” that raised arguments for and against vaping.
Among those in attendance were Crosthwaite of Juul; Ryan Nivakoff, CEO of NJOY, Scottsdale, Ariz.; Meredith Berkman, co-founder of Parents Against Vaping e-Cigarettes, New York; Gregory Conley, president of the American Vaping Association (AVA), Stamford, Conn; and Henry Armour, president and CEO of NACS, Alexandria, Va. “NACS ... has been to the White House numerous times for meetings with key administration staff on critical industry issues, but it’s certainly a different level when the president is leading the meeting,” Armour tells CSP. “There is an entirely different energy in the room.”
Armour reminded Trump of his visit to a Pennsylvania Wawa store during his 2016 presidential campaign, according to an official transcript of the meeting.
Armour: So those are my people. And probably more importantly, they’re your people.
Trump: OK, they are. And they’re—everybody. They’re great people.
Others at the meeting spoke for and against flavors, raising the legal age to buy tobacco products and menthol. Because many of the major tobacco companies already conceded to raising the legal age, much of the debate pivoted around adult use of flavors to break from combustible cigarettes vs. underage use.
Inevitably, menthol, flavors and youth appeal melded, as demonstrated in an exchange between Trump and anti-vaping advocate Berkman:
Trump: So you want to ban all flavors?
Berkman: We want to ban all flavors.
Trump: Including menthol?
Berkman: Including menthol and mint. Because, as was said earlier … if you get rid of just the mint, the kids will go to menthol.
The Tobacco Road Ahead
On Dec. 17, Stephen Hahn was sworn in as the next commissioner of the U.S. Food and Drug Administration (FDA). With regard to the tobacco category overall, here’s what Hahn is heading into, according to New York-based Wells Fargo Securities:
Menthol’s story goes back 95 years, but it officially took off in 1956 when R.J. Reynolds, Winston-Salem, N.C., premiered its Salem brand.
Menthol has a checkered past in its appeal to certain demographics, including young people; women; the lesbian, gay, bisexual and transgendered community; and African-Americans, according to the CDC. This has made it a longstanding target of anti-smoking advocates.
“Menthol is the single most critical flavor when it comes to both adult and youth smoking,” a Dec. 13 article in Science magazine said. “Despite two FDA-derived reports that recommended a ban on menthol in combustibles, there has been policy paralysis in the face of appalling evidence: Fifty-two percent of all youth and more than 90% of African-American youth initiate smoking with menthol. If we are going to take policy action on flavors, menthol in combustible products must be the first target.”
Meanwhile, menthol has grown into a massive part of the cigarette category. Reynolds’ Newport menthol lines, which is now owned by London-based British American Tobacco, garnered $7.7 billion in U.S. sales across all retail channels for the 52 weeks ending Oct. 5, 2019, second only to Marlboro in brand popularity, according to New York-based Nielsen.
As a result, menthol also carries a high degree of political clout, which has helped it survive previous regulatory maneuvers, such as the banning of flavored cigarettes in 2009’s Family Smoking Prevention and Tobacco Control Act.
But on the local level, cities such as San Francisco and Minneapolis have taken aggressive measures on vaping products and menthol.
Cam Gordon, a Minneapolis city council member who voted for a 2018 ordinance restricting the sale of menthol-flavored tobacco products to 21-and-older stores, tells CSP that the city had a “responsibility to look at the big pictures in terms of the public health, and we have clear evidence that smoking is harmful, and it’s harmful to our youth particularly.”
Those supporting the legal sale of menthol products emphasize how much trade and jobs it creates, and warn that, if pushed underground, it would force black markets.
Richard Marianos is a former assistant director of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) who has spoken against large-scale restrictions such as the one in Massachusetts, primarily due to the growth of illicit trade. “When is public safety not part of public health strategy?” says Marianos, now on the faculty of Georgetown University, Washington, D.C. “You can’t have a healthy community if it’s not safe.”
Based on his ATF experience, Marianos says high tobacco taxes in states such as New York and Illinois encouraged trafficking from neighboring states, with “bad guys”—everything from street gangs to overseas terrorist groups—on one end and regular citizens wanting legal product on the other.
“Your typical suburban police department is dealing with more responsibility but fewer resources,” he says. “Do you want your cops, who are paid to serve and protect, enforcing the sale of cigarettes on the street out of backpacks and trucks?”
“Twenty years ago, we had the same discussion about marijuana,” says Tony Abboud, executive director of the Vapor Technology Association (VTA), Washington, D.C. He points out that recreational marijuana is now legal in Massachusetts partly to control illicit distribution.
Shaer of NECSEMA contends that most lawmakers understand that prohibition and bans don’t work and that regulation is the solution. Illegal products can’t be regulated and may lead to the distribution of low-grade products, he says: “It’s a maddening hypocrisy.”
Shaer describes the Massachusetts’ governor as a “thoughtful and a responsive policy maker,” but about the decision to ban menthol, “this ran very counter to that reputation.”
While the vape ban had a four-month evaluation period, menthol didn’t. Shaer says, “A billion-dollar market … [and] all sorts of major considerations that a thoughtful legislator would have evaluated, they ignored.”
After a request for comment, R.J. Reynolds responded to CSP, “We agree with the Massachusetts legislature that youth should never vape or smoke, but the unfortunate decision to restrict otherwise legal adult products like menthol cigarettes, smokeless tobacco and flavored vapor products to local smoking bars does not solve for youth vaping, and instead has the unintended consequence of creating an illicit market for menthol cigarettes while also removing vapor alternatives from the market for adult cigarette smokers.”
Baker’s office did not respond to CSP’s request for comment.
The Acetate Factor
While not pulling back on its initial warnings, the CDC held a press conference Nov. 8 to announce possible ties to the outbreak of vape-related illnesses to illicit sources of product; tetrahydrocannabinol (THC), the psychoactive element in marijuana; and a compound called vitamin E acetate.
James Pirkle, a director within the CDC family of agencies, described vitamin E acetate as “enormously sticky” when it goes into the lungs, saying it “does hang around.”
From that point, the outbreak of lung illnesses and the problem of youth vaping would publicly start to become two separate discussions. In the December article in Science, authors spoke of “the intersection of two distressing but distinct” patterns: youth vaping and the other of acute lung injuries. “Discussions of vaping, however, often neglect distinctions between nicotine and THC; between adults and youth; and between products obtained through the retail and black markets,” the authors said.
Ultimately, the “conflation” of underage use and the outbreak of illnesses tied to vaping brought the political momentum necessary to bring down menthol in Massachusetts, says Michael Siegel, a professor in the Department of Community Health Services at Boston University’s School of Public Health.
Siegel opposes the use of tobacco products but supports vaping as an option for smokers trying to wean themselves from combustibles. He says using the outbreak to achieve a ban was “expedient” for lawmakers.
“It’s politically easy to say we have to protect youth and then ban all flavored tobacco products. That’s an easy way to get a political victory,” Siegel tells CSP. “To do the hard thing and actually try to get to the bottom of an outbreak is a difficult thing. It’s not glamorous work.”
Much of the state-level legislation occurred in the information vacuum from September to November. Regulatory opponents argued that the CDC did not do enough to clarify the situation.
“It took the government time to find what caused the outbreak,” says Jonathan Havens, partner with Saul, Ewing, Arnstein & Lehr LLP, Washington, D.C. Havens works with clients such as product manufacturers to navigate government regulations. “But the CDC is not interested in being first; they’re in the business of being right.”
Regardless of the timing, policy makers made choices—before all the information became known, critics say. Jim Calvin, president of the New York Association of Convenience Stores and a registered New York lobbyist, says the CDC’s reports of illnesses and deaths were tied to vaping products that contain marijuana’s THC and vitamin E acetate, but he points out that c-stores sell name-brand, commercial vaping products.
“The media was not careful to explain the difference between the products that caused those illnesses and deaths vs. the products that are sold in a typical convenience store,” Calvin says. “So the hysteria is what was driving these policies, as opposed to facts and research and careful deliberation.”
On Dec. 20, the CDC announced a decline in emergency department reports of lung illnesses tied to vaping and further established the role of vitamin E acetate. Those defending vape had hoped for such a clarification.
“Our manufactured, regulated nicotine products have been on the market for years [in the United States], a decade around the world, without incidents cropping up and the constituents of these nicotine products has been unchanged for three years,” Abboud of VTA says.
Then on Jan. 2, 2020, the FDA issued its final guidance governing its enforcement powers over e-cigarettes, effectively banning flavored cartridges from the market until those products receive agency authorization through the PMTA process. The rules excluded pourable liquids for open vaping systems as well as tobacco and menthol flavors, which the FDA cited as being less used by youth.
While some tobacco retail groups such as NACS were grateful that the rules did not discriminate against channel types, those in the anti-vape camp felt the flavor stipulations fell short because of their exclusions.
The FDA was clear about its decision-making. “Additional data from another federal survey further underscore that youth are particularly attracted to e-cigarette flavors such as fruit and mint, much more so than tobacco or menthol flavored e-cigarettes,” officials said in a press release.
In a span of about three months, Massachusetts effectively banned menthol at retail, the federal minimum age to purchase tobacco products rose from 18 to 21 and flavored e-cigarette cartridges—with the exception of tobacco and menthol—were banned pending FDA authorization.
Three lessons from that time frame:
In September, a few days after the CDC’s press conference, the reported lung illnesses at emergency departments peaked. But the agency did not announce this news until just before Christmas. In that short window, eight states issued flavored vape restrictions, with Massachusetts going further to heavily restrict menthol; the nation raised its tobacco buying age to 21; and just days later, the FDA effectively pulled flavored vape cartridges.
For tobacco policy experts such as Siegel, the arguments that won the day ultimately lacked foundation. For instance, in Massachusetts, Baker and other health officials allowed their declaration of a health crisis to lapse. If the cause of the outbreak—and the reason the legislation and the resulting flavor bans that included menthol—were still unknown, Siegel says the declaration should not have been rescinded.
“It shows me that it isn’t about the outbreak, it’s about getting flavored e-cigarettes off the market,” Siegel says. “Once the goal was accomplished, they can now rescind [the initial health decree]. The whole thing was a scam.”
Conflation at the federal level seems to be dissipating, but not altogether gone. A press release announcing the FDA’s final guidance only pointed to research that ties flavors to youth vaping. But the 53-page guidance does mention the outbreak and “evidence suggesting that additive agents, specifically vitamin E, may play a causative role.”
Real solutions, Bettencourt of VERC says, lie not only in understanding what the core problem is but in bringing all stakeholders together. She argues that a clearer solution to youth vaping is a greater investment in public education and stronger possession laws, like those governing adults who give alcohol to minors.
For retailers and manufacturers, that final guidance may limit the variety of products they can sell, at least in the short term. A revealing back-and-forth at the earlier White House gathering between Trump, Abboud of VTA, Crosthwaite of Juul and Conley of the AVA, alluded to a long game:
Trump: Why is Juul not going out of business if [it] doesn’t do flavors?
Abboud: They’re the big guys.
Conley: Investment capital. They can wait it out. They can wait a year, two years to go back to having the market share they have today.
Trump: So what’s your game?
Crosthwaite: Like I said earlier, I think this is a science-based evidence argument that we look forward to making. We think preserving this opportunity for adult smokers who can’t quit to have an option is really important work. That’s the mission of our company.
If flavored cartridges are to return to c-store shelves, the onus will fall on manufacturers to make the public health case to the FDA.
The 114 days from Sept. 11, 2019, to Jan. 2, 2020, were explosive for tobacco. But the “future is bright in a sense,” Abboud says.
“There’s an enormous commitment to the product,” he says. “We’ve staved off a federal flavor ban. And in some states that got it wrong, we’ll go in and ultimately prove they got it wrong.”