Today, NATO submitted the accompanying comments to the U.S. Food and Drug Administration in response to the agency’s Advanced Notice of Proposed Rulemaking (ANPRM) regarding the role of flavors in tobacco products. In the ANPRM, the FDA requested comments from the public and the industry about the use of flavors in cigarettes (menthol) and other tobacco products. This ANPRM indicates that the agency is considering restrictions or prohibitions on the use of flavors in tobacco products.
In NATO’s comments, the association focuses on many different issues and concerns raised by this ANPRM which include the following:
1. The importance of consumer choice for flavored products whether that be soft drinks, coffee, alcoholic beverages or tobacco products.
2. The Congressional limitation imposed on the FDA that prohibits the agency from banning an entire class of tobacco products. However, an across the board ban on flavors would for all intents and purposes prohibit the sale of pipe tobacco and many other categories of products including certain cigars, electronic cigarettes, vapor products and hookah tobacco.
3. The FDA’s potential consideration of restricting or prohibiting the advertisement of flavored tobacco products is unconstitutional since the First Amendment of the U.S. Constitution protects free speech, which includes commercial speech in the form of advertising.
4. The likelihood of a significant illicit market for menthol cigarettes and flavored tobacco if the FDA mandates the elimination of flavors.
5. The need to conduct an educational campaign so that adults do not serve as a source of tobacco for underage youth.
6. The decline in the legal sale of cigarettes and tobacco products and the need for a fiscal impact analysis so that state and federal lawmakers are aware of the potential for reduced cigarette and tobacco product excise tax revenue and sales tax collections.
7. The impact of banning flavors in tobacco products on the public health.
The FDA will review all the comments submitted in response to this ANPRM and then decide whether to propose any new regulations regarding the use of flavors in tobacco products.