Oversight Subcommittee Presses FDA on Menthol Exception from Ban on Flavored Vaping Products

Jan 23, 2020
Press Release

Washington, D.C. (Jan. 23, 2020)—Rep. Raja Krishnamoorthi, the Chairman of the Subcommittee on Economic and Consumer Policy, sent a letter to the Food and Drug Administration (FDA) about its plans to enforce the Trump Administration’s recently announced partial ban on flavored vaping pods.  FDA needs to monitor, in real time, the large number of children who will migrate to menthol e-cigarettes from other now-banned flavors.  FDA must commit to banning menthol e-cigarettes if youth use surges.   

“On September 11, 2019, President Trump and his top health officials publicly vowed to protect America’s youth by clearing the market of all flavored vaping products, including menthol.  The President pledged that the FDA would take action within a ‘couple of weeks’,” wrote Chairman Krishnamoorthi.  “Despite these promises the President went back on his commitment.  The guidance was not finalized for 113 days, and when it emerged from FDA on January 2, 2020, special interests had secured an exemption for menthol.”

The President’s vow to ban menthol was based on National Youth Tobacco Survey (NYTS) data showing that 64% of kids who vape use menthol or mint flavors.  FDA justified its reversal on menthol based on the Monitoring the Future (MTF) survey, which FDA claimed supported the idea “that youth use of menthol-flavored products is not as high as that for mint- and fruit-flavored products.”

Children who currently use mint will migrate to menthols.  Such flavor migrations have been documented between much less similar flavors.  Mango was the most popular flavor until JUUL was forced to stop selling it, and then the mint flavor went from unfavored by kids to the most popular.  

Dr. Anne Schuchat with the CDC recently testified that “we believe that kids are likely to use whatever flavor is left,” while JUUL’s former CEO Kevin Burns said “you need to have an IQ of 5 to know that when customers don’t find mango, they buy mint.”

“With both mango and mint now banned, it is even more obvious that kids will choose menthol,” wrote Chairman Krishnamoorthi.   “FDA may not be able to determine for months after-the-fact if children migrated to menthol-flavored e-cigarettes, as experts have predicted.  In that case, the Administration’s policy to exempt menthol from the vaping flavor ban will have done too much damage.” 

And FDA’s reliance on the MTF survey is misplaced.  The data collection for the MTF survey was conducted when JUUL still sold mint- and fruit-flavored pods and fails to acknowledge the degree to which kids used menthol when their preferred flavor was not available, or will use menthol now that it is the only flavor allowed.

In the letter, Chairman Krishnamoorthi requested that FDA explain how it will monitor youth menthol use patterns in real time, and what commitments it will make to act if it discovers that youth menthol use spikes by February 4, 2020.

Click here to read the letter. 

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116th Congress