Government regulators are banning menthol cigarettes and chipping away at flavored e-cigs - but not in the way some thought

Reuters

FDA Commissioner Scott Gottlieb

• Federal regulators on Thursday announced a ban on menthol cigarettes and a move to place flavored e-cigarettes like the Juul behind a stronger regulatory fence.
• The move is less severe than what some expected to see: an immediate ban on flavored e-cigs being sold at convenience stores and gas stations.
• Menthol and mint e-cigarettes aren't affected by the government's proposal at all.
• Earlier this week, Silicon Valley e-cig startup Juul announced it would temporarily stop selling its flavored e-cigarettes in stores - a move it likely made in advance of the government's latest statement.

Instead of announcing what was expected to be a sweeping and immediate ban on flavored e-cigs like the Juul on Thursday, government regulators said that they would be banning regular menthol cigarettes and revisiting a year old-policy designed to put new e-cig products behind a stronger regulatory fence.

In a statement, Food and Drug Administration Commissioner Scott Gottlieb said his agency would revisit its policy as it applies to all flavored e-cigs, except for tobacco, mint, and menthol varieties. FDA didn't provide a timeline for the changes.

The changes Gottlieb aims to see, he said, would protect teens and minors by ensuring those products were only sold in locations that cater exclusively to adults. Online sales would also be allowed "under heightened practices for age verification."

The move may surprise Juul Labs, the Silicon Valley startup that currently captures 80% of the e-cig market.

Earlier this week, the company announced its own temporary and immediate ban on flavored e-cigs being sold at convenience stores, gas stations, and vape shops. Experts say the move was likely made in advance of an expected similar action from the FDA. Last week, the Washington Post reported that the agency would ban "most flavored e-cigarettes in tens of thousands of convenience stores and gas stations across the country."

Juul responded with its own action that ended up being stronger than FDA's announcement.

"As of this morning, we stopped accepting retail orders for our Mango, Fruit, Creme, and Cucumber Juul pods to the over 90,000 retail stores that sell our product, including traditional tobacco retailers (e.g., convenience stores) and specialty vape shops," Juul CEO Kevin Burns said in a statement on November 13.

But the FDA did not ban flavored e-cigs today.

Instead, the agency barred the sale of menthol cigarettes - which Gottlieb said he believed "represent one of the most common and pernicious routes by which kids initiate on combustible cigarettes" - and outlined plans to eventually regulate e-cigs more strongly using a policy he initially proposed last year and then waived.

Thanks to that policy, any new e-cig introduced before August 2016 was essentially grandfathered onto the market, meaning its makers did not have to seek FDA approval to sell their products until at least 2022.

That waived policy has essentially been the door through which e-cig companies like Juul were able to aggressively market and sell their products.

Gottlieb said he hopes that by revisiting that policy, it will place e-cigs back behind a regulatory fence and ensure that they are marketed and sold in a responsible manner that doesn't target youth.

The government is also preparing to publish new data which suggest a troubling increase in e-cig use among teens. From 2017 to 2018, Gottlieb said, there was a 78% rise in current e-cig use among high school students and a 48% increase among middle school students.

"These data shock my conscience," Gottlieb said in the statement.

"The bottom line is this: I will not allow a generation of children to become addicted to nicotine through e-cigarettes," he said in the statement.