The decision is a win for some of Trump’s conservative allies, who warned a more sweeping ban on flavored vaping products would alienate the president’s base and weaken his reelection effort. However, the carveouts have angered public health groups.
“It is a capitulation to both Juul and vape shops and gives a green light to the e-cigarette industry to continue to target and addict kids with flavored products,” said Matthew Myers, president of the Campaign for Tobacco Free-Kids, in a statement Tuesday.
The issue appeared to put Trump’s top health advisers at odds with his re-election campaign and free-market outside groups. Campaign manager Brad Parscale urged the president to back off of a sweeping ban over concerns it could trigger backlash among his own supporters. That also put the campaign at odds with first lady Melania Trump, who the president identified as driving force behind the more muscular ban he initially proposed.
Trump unexpectedly announced a plan for broad flavor bans in September, citing widespread teen vaping and concerns over the ongoing outbreak of vaping-linked lung illnesses. More than 50 people have been killed and more than 2,500 sickened by the illnesses, which have mostly been linked to marijuana vapes from the black market.
“Children have died, people have died,” Trump said at the time, citing Melania’s concerns as the parent of a teenager. “And we’re going to have some very strong rules and regulations.”
The administration in September said it would ban menthol and mint vaping products, citing the popularity of those flavors among teens — 64 percent of of high school vapers reported using those flavors, according to early figures from this year’s National Youth Tobacco Survey.
The pressure campaign to water down the ban came quickly after that initial announcement. And within days, Trump softened his rhetoric on vaping, highlighting its potential for helping adults quit smoking.
“While I like the Vaping alternative to Cigarettes, we need to make sure this alternative is SAFE for ALL!” Trump tweeted. “Let’s get counterfeits off the market, and keep young children from Vaping!”
By early November, the sweeping flavor ban dead. The only question was whether the administration would offer a watered down version or move on from the issue.
HHS and FDA declined to comment Tuesday evening.
The decision to ban mint while allowing menthol vapes could be seen as a compromise while traditional menthol cigarettes, considered much more harmful, are widely sold. In earlier proposals, the FDA would have exempted menthol e-cigarette products from regulation until menthol cigarettes were banned. The agency in March 2018 proposed a ban on menthol cigarettes but hasn’t advanced the proposal.
Juul, the leading e-cigarette maker, recently pulled its sweet and mint flavors off the market amid a broader shift in company strategy following months of negative headlines. Juul, which continues to sell menthol vapes, said it would not lobby the administration on the flavor ban.
Juul and bigger vaping companies have said they could manage a flavor ban, but smaller industry players and retailers predicted it would crush them. Trump acknowledged this concern in recent weeks, saying that his administration’s vaping efforts would account for the potential impact on jobs.
Thousands of small e-cigarette manufacturers and vape shops have warned that sweeping flavor bans would shutter an industry that’s grown rapidly in recent years. Free-market groups have warned that the impact could ripple into Trump’s 2020 campaign efforts.
One of those groups, Americans for Tax Reform, provided polling data to the White House and Trump campaign that showed flavor bans would hurt the president “in every battleground state.”
“Trump wants to win next year,” said Paul Blair, the group’s director of strategic initiatives. “He knows that killing 10,000 small businesses and putting 100,000 people out of work for Christmas would be a pretty bad way to begin the 2020 campaign in earnest.”
Flavored e-cigarettes covered by the ban must be removed from stores without age restrictions, like gas stations and retail chains, within 30 days, HHS Secretary Alex Azar said in September. Companies hoping to sell those products again would have to prove to the FDA that their products don’t harm public health.
Trump’s slimmed-down e-cigarette regulation will likely loom large in the initial months of new FDA Commissioner Stephen Hahn’s tenure. The longtime cancer researcher was confirmed this month after senators grilled him on vaping regulation during a committee hearing.
Lawmakers largely hailed the flavored vaping ban when Trump first announced it in September, but Democrats for weeks have been pushing the administration to formalize sweeping restrictions. Dick Durbin, the No. 2 Senate Democrat, in particular has criticized the administration for reacting too slowly to rising teen vaping rates and sparred with the previous acting FDA head over the issue.
Public health groups were outraged when reports began circulating in October that the administration was considering whether to exempt mint and menthol. They said the new rules won’t do enough to discourage teen use.
“It’s a compromise that removes the product that most Juul users are using today — but just as when mango [flavor] became less available, it opens the door to what they will use tomorrow,” said Myers.
Skeptics warn that e-cigarette makers could try to blur the line between mint and menthol flavors in a way that could still attract teen users. Many public health groups say mint is far more popular than menthol among teens, but most surveys make it difficult to determine flavor preferences. One of the rare studies to do so, which was published in a major medical journal in November, indicates teens vastly prefer mint Juul pods to menthol ones.
However, critics worry about providing any leeway on flavored products. Former FDA commissioner Scott Gottlieb, a Juul critic, this fall expressed concern that e-cigarette makers would try to game a ban just on mint vapes.
“The challenge with the policy of carving out menthol is Juul is likely to rename their mint [to] menthol,” Gottlieb said. “There is probably not much FDA can do when a company renames a flavor.”
Critics such as Myers question whether limiting flavored sales to vape shops will actually curb teen use. The FDA earlier this year noted that 14.8 percent of teens reported getting e-cigarettes in vape shops in the past month, compared to just 8.4 percent who said they bought the products in a gas station or convenience store.
“There is no rationale for exempting vape shops if the concern is sales to kids,” Myers said.