Attorney General Phil Weiser urges FDA to strengthen e-cigarette enforcement guidance to include menthol and disposable, refillable products

Feb. 27, 2020 (DENVER, Colo.)—Attorney General Phil Weiser today joined a bipartisan coalition of 27 attorneys general in sending a letter to the Food and Drug Administration (FDA) urging the agency to expand and strengthen its e-cigarette enforcement guidance by including menthol flavors and products that are not cartridge based.

“The current FDA guidance creates loopholes for menthol flavors and refillable devices that manufacturers can exploit.” said Weiser. “Colorado was one of the early states to open an investigation into e-cigarette manufacturer JUUL because of marketing practices directed at youth. We have one of the highest youth vaping rates in the country, and we’re addressing this critical issue from a number of directions, including raising public awareness about dangers of youth vaping, supporting policies to ban youth-friendly e-cigarette marketing and flavors, and exploring possible litigation.”

Under the guidance that the FDA issued in January, 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 flavors to substitute for mint.

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 manufacturers can exploit by simply renaming the flavors on product labels.

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.

States that joined in signing the letter include: Arkansas, California, Connecticut, Colorado, Delaware, the District of Columbia, Hawaii, Idaho, Illinois, Maine, Maryland, Massachusetts, Nevada, New Mexico, New York, North Carolina, Oklahoma, Oregon, Pennsylvania, Puerto Rico, Rhode Island, Texas, Utah, Virginia, Vermont, Washington, and Wisconsin.

###

Lawrence Pacheco
Director of Communications
(720) 508-6553
Lawrence.Pacheco@coag.gov