Federal Priorities for the 118th Congress: Tobacco

Following the removal of almost all flavored cigarettes from the marketplace, cigarette smoking rates among youth dropped to historically low levels. However, the remaining flavored tobacco products, including menthol cigarettes, cigars and e-cigarettes, on the market are attracting and addicting another generation. FDA must finalize rules by April 2023 to eliminate all flavored tobacco products from the marketplace, including menthol cigarettes, flavored cigars and e-cigarettes.

Since 2009, FDA has failed to use the comprehensive authority it has from the Tobacco Control Act to put meaningful restrictions on tobacco products, including e-cigarettes and products with synthetic nicotine, in place. Most tobacco products, including all e-cigarettes, were required to submit a product application to FDA by September 9, 2020 to determine whether they should be permitted to stay on the market. Consistent with principles established by the Lung Association and our partners, the FDA must follow the public health standard required by law in reviewing these applications and require the removal of all tobacco products that came onto the market illegally after August 8, 2016. FDA must remove all products that failed to file an application.

Nicotine is the addictive drug in tobacco products. Reducing nicotine in tobacco products to below levels that sustain addiction will make it easier for smokers to quit and harder for youth to become addicted. FDA must not limit its focus solely to cigarettes; FDA must propose and finalize regulations to reduce nicotine levels in all tobacco products, including cigars, smokeless tobacco and e-cigarettes.

The 2009 Tobacco Control Act requires FDA to issue a rule requiring all cigarette packs have graphic warning labels on the 50% of the front and back of all cigarette packs. A 2020 ruling in a federal lawsuit brought by the American Lung Association and public health partners resulted in FDA releasing final graphic warnings by March 15, 2020. Tobacco industry lawsuits have delayed this requirement and in December 2022, a federal judge in Texas sided with the tobacco industry. FDA and the Department of Justice must strongly defend graphic warning labels in the federal courts.

The 2009 Tobacco Control Act calls for the FDA to create a comprehensive track and trace system to counter the threat of illicit markets and maximize the public health benefits of strong oversight, which the agency has failed to do thus far. The tobacco industry has a history of being complicit in supplying illicit markets, repeatedly opposing taxation proposals to protect public health and financially benefitting from the illicit diversion of their own products. FDA must propose and finalize regulations in 2023 to implement “track and trace” technology on all tobacco products to prevent black market, counterfeit and smuggling activities.

The federal government has not increased taxes on cigarettes and other tobacco products since 2009 and a significant increase is long overdue. Increasing tobacco taxes is one of the most important actions Congress could take to reduce youth initiation and incentivize tobacco users to quit for good. Congress should pass legislation that would double the federal tax rate on cigarettes and equalize the federal tax rate for all other tobacco products.