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AG Reyes Leads Effort Urging FDA to Strengthen E-Cigarette Enforcement Guidance

FOR IMMEDIATE RELEASE
February 28, 2020

ATTORNEY GENERAL REYES LEADS EFFORT URGING FDA TO STRENGTHEN E-CIGARETTE ENFORCEMENT GUIDANCE
 26 Attorneys General Encourage FDA to Expand Guidance to Include Menthol and Disposable, Refillable Products

SALT LAKE CITY– Attorney General Sean D. Reyes today announced he is leading a bipartisan coalition of 26 attorneys general along with Illinois Attorney General Kwame Raoul and Idaho Attorney General Lawrence Wasden, urging the Food and Drug Administration (FDA) to strengthen guidance the agency issued to explain how it will enforce regulations of electronic nicotine delivery systems, or e-cigarettes.
 
In comments submitted today, the coalition is encouraging the FDA to expand and strengthen its enforcement guidance by including menthol flavors and products that are not cartridge-based. Raoul and the coalition state that the current guidance creates loopholes that manufacturers can exploit and will not help decrease e-cigarette usage among youth.
 
“E-cigarette use has grown exponentially in the last few years, especially among Utah youth,” said Attorney General Reyes. “We need to do what we can to protect young people from being lured into a vicious nicotine addiction. These flavored, disposable alternatives to cigarettes have not proved to be any safer than other tobacco products.”
 
The FDA released guidance in January describing how the agency will prioritize e-cigarette enforcement resources. According to the guidance, the FDA will prioritize enforcement against flavored, cartridge-based e-cigarettes, with the exception of tobacco or menthol-flavored products. The FDA will also prioritize enforcement against e-cigarette products marketed toward minors or manufacturers that have not taken adequate measures to prevent minors from using their products. However, the guidance does not prioritize disposable products or refillable cartridge systems that are popular among youth.
 
Under the new guidance, mint-flavored e-cigarette products are included in the FDA’s enforcement priorities, and the coalition is urging the FDA to amend the guidance to include menthol flavors. The attorneys general point out that as a flavor derived from mint, menthol shares many of the same characteristics making it a convenient substitute for youths who would search for a flavor to substitute for mint. The coalition cites the FDA’s own data, showing that the use of mint and menthol flavors by high school e-cigarette users dramatically increased from 16 percent in 2016 to more than 57 percent in 2019. The coalition also points to the FDA’s admission that evidence has shown that individuals who already use flavored tobacco products will likely switch to other flavored tobacco products if their preferred flavor is no longer available.
 
In addition to menthol serving as a likely mint substitute due to the flavor similarities, the coalition states that the FDA’s decision to permit menthol is problematic because the guidance does not explain how the FDA will distinguish between the two similar flavors. The coalition expresses concern that the FDA will be forced to rely on packaging descriptions of the flavors, which the attorneys general argue creates a loophole which manufacturers can exploit by simply renaming the flavors on product labels.
 
The FDA claims its reasoning for allowing menthol is to avoid removing an incentive for adult smokers who might transition from using combustible cigarettes to “potentially less harmful” e-cigarettes. The coalition points to a 2020 Surgeon General report, which said there is not enough evidence to show that e-cigarettes increase smoking cessation. In fact, the coalition argues, the purported benefits of menthol’s availability to adult smokers should be outweighed by the risk it poses of attracting youth smokers.
 
Also in the comments, the coalition states that the FDA’s focus on cartridge-based products creates a loophole for self-contained, disposable products that are popular with youth. The coalition points out that with two of the most popular e-cigarette devices among high school students being disposable, the guidance will have the result of pushing youth toward refillable systems.
 
The letter includes the attorneys general of Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Maine, Maryland, Massachusetts, New Mexico, New York, North Carolina, Oklahoma, Oregon, Pennsylvania, Puerto Rico, Rhode Island, Texas, Utah, Virginia, Vermont, Washington, and Wisconsin in submitting the comments.
 
A copy of the comment letter can be found here
 

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AG Reyes and 43 Attorneys General Urge Streaming Industry to Limit Tobacco Use

FOR IMMEDIATE RELEASE
August 7, 2019

A.G. Reyes: “Protect Young Video Viewers from Tobacco”
43 Attorneys General Urge Streaming Industry to Limit Tobacco Use

AGs provide policy guidelines to combat increasing use of tobacco products by young people

SALT LAKE CITY – Utah Attorney General Sean D. Reyes today joined a bipartisan coalition of 43 attorneys general, in urging the streaming video industry to limit tobacco use in their content. Due to the growing use of tobacco and e-cigarette products among teens, the attorneys general urge the streaming industry to take proactive steps to protect the lives of young viewers.

According to the Center for Disease Control and Prevention, the number of middle and high school students using e-cigarettes rose from 2.1 million in 2017 to 3.6 million in 2018.  Smoking remains the number one preventable killer in the United States and causes over 480,000 deaths per year.

Attorney General Reyes is committed to protecting public health by reducing the number of smokers and ensuring tobacco companies meet their obligations under the tobacco settlement.

“Given the recent significant rise in tobacco use by young people, particularly the use of e-cigarettes, preventing initiation and use of tobacco products is of critical importance to us and the public health community, and we sincerely hope it will be addressed by the streaming industry,” read the letters signed by 43 state and territory attorneys general.

In 2012, the U.S. Surgeon General concluded that watching movies with tobacco imagery increases the likelihood that adolescents will become smokers. In their letter, the Attorneys General urge the video streaming industry to adopt the following policies to protect young viewers from the ill effects of tobacco content:

  • Eliminate or exclude tobacco imagery in all future original streamed content for young viewers, including any content rated TV-Y, TV-Y7, TV-G, TV-PG, TV-14, G, PG, and PG-13, and ensure that any promotional material such as previews, trailers, image galleries, and clips be tobacco-free. Content with tobacco imagery should be rated TV-MA or R and only recommended to adult viewers. 
  • Only “recommend” or designate tobacco-free content for children, adolescents, families, and general audiences.
  • Improve or offer parental controls that are effective, prominent, and easy-to-use, that allow parents and guardians specifically to restrict access to all content with tobacco content, regardless of rating.
  • Mitigate the negative influence of tobacco content, from whatever source and with any rating, by streaming strong anti-smoking and/or anti-vaping public service announcements, as appropriate, before all videos with tobacco content.

In 1998, Attorneys General across the nation fought to enter into the Tobacco Master Settlement Agreement, which imposed major restrictions on tobacco company marketing practices and prohibits advertising aimed at youth. This included banning the advertisement of tobacco products on TV shows, movies and video content. Despite the ban, studies by the public health organization Truth Initiative found a high rate of tobacco content in streamed videos that are popular with young viewers. In particular, the study discovered high rates of tobacco usage in TV-Y and TV-PG shows. Further, a 2018 study found the streamed videos that are most popular with young viewers feature higher rates of tobacco content than programs shown on traditional television. A 2019 report by the Truth Initiative showed that the danger has only grown in the past year.  

In sending today’s letter, Attorney General Reyes was joined by the Attorneys General of California, Nebraska, Alaska, Arkansas, Colorado, Connecticut, Delaware, District of Columbia, Florida, Guam, Hawaii, Idaho, Illinois, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Northern Mariana Islands, Ohio, Oregon, Pennsylvania, Puerto Rico, Rhode Island, Tennessee, U.S. Virgin Islands, Utah, Vermont, Virginia, Washington, and Wisconsin.

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Notes:

  1. In 2018, Attorney General Reyes announced a $300 million settlement agreement with major tobacco companies: https://attorneygeneral.utah.gov/ago-secures-settlement-with-tobacco-companies/
  2. In 2014, Attorney General Reyes joined with 45 other attorneys general to urge the U.S. Trade Representative to exclude tobacco and tobacco products when negotiating all international trade and investment agreements: https://attorneygeneral.utah.gov/attorney-general-sean-d-reyes-is-one-of-45-attorneys-general-to-push-for-state-and-local-tobacco-regulation/
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