Key Findings

“State of Tobacco Control” 2023: Federal Government Takes Several Promising Steps Forward to Reduce Tobacco Use¹, but Action Must Continue Against Tobacco Product Manufacturers

The American Lung Association’s annual “State of Tobacco Control” report evaluates states and the federal government’s actions to eliminate the nation’s leading cause of preventable death—tobacco use—and to save lives with proven-effective and urgently needed tobacco control laws and policies. In the report, the Lung Association assigns letter grades, A through F, to the state and federal policies best proven to prevent and reduce tobacco use.

Federal Grades 

“State of Tobacco Control” 2023 features several significant steps taken by the federal government in 2022 to prevent and reduce tobacco use. This led to an improvement in the grade for Federal Regulation of Tobacco Products. Of key importance, and long overdue, was the U.S. Food and Drug Administration (FDA)’s proposed rules released in April 2022 to eliminate menthol cigarettes and end the sale of flavored cigars. Menthol cigarettes and flavors in cigars make it easier for kids to start smoking and harder for them to quit. These rules, when finalized, will benefit many people who use menthol cigarettes or flavored cigars at disproportionately higher rates, especially Black Americans. The Lung Association urges the FDA and the Biden administration to finalize these proposed rules as soon as possible. 

Congress also took important action in March 2022 to extend FDA authority over tobacco products to include e-cigarettes and other products containing synthetic, or non-tobacco, nicotine. This legislation was intended to close the so-called “PuffBar loophole” that allowed e-cigarette products claiming to contain synthetic nicotine, such as PuffBar - one of the brands of e-cigarettes most used by kids, to evade FDA’s authority. The legislation set out clear deadlines for FDA to take action and remove illegally sold synthetic nicotine products from the market.        

However, the timelines laid out in the law for enforcement action were missed, allowing an untold number of e-cigarettes containing synthetic nicotine, many in kid-friendly flavors, to remain on the market. Inaction by the Biden administration on synthetic nicotine has led to increased sales of e-cigarettes and continued high levels of vaping by kids. In total, 2.55 million middle and high school students used e-cigarettes in 2022 according to the Centers for Disease Control and Prevention (CDC)’s 2022 National Youth Tobacco Survey.¹  

It will take significantly more federal enforcement action aimed at manufacturers, distributors, wholesalers and importers to end the youth vaping epidemic. Actions must include legal remedies by the U.S. Department of Justice (DOJ) on behalf of FDA against manufacturers selling illegal products and stopping the importation of illegal products from other countries by U.S. Customs and Border Protection to ensure that no unauthorized and illegal products remain on the marketplace. 

There have been some encouraging developments on the enforcement front, including DOJ seeking permanent injunctions against six e-cigarette manufacturers to stop them from distributing illegal products in October 2022. It was also encouraging in October that FDA’s Center for Tobacco Products denied the first premarket application of a menthol e-cigarette. However, there must be significantly more enforcement action to halt the rampant importation of illegal products. 

There was continued good news on the adult cigarette smoking and tobacco use front as data from 2020, released in March 2022, saw the lowest cigarette smoking rate among adults ever recorded. Only 12.5% smoked in 2020, a significant decline from 14.0% in 2019. Overall adult tobacco use, and adult e-cigarette use also declined from 2019 to 2020.²

Tobacco remains the leading cause of preventable death and disease in America, killing 480,000 people each year. In addition, 16 million Americans live with a tobacco-related disease.³

However, these overall rates mask significant disparities in tobacco use among races/ethnicities and due to socio-economic factors. Smoking remains alarmingly high among Native Americans and Alaskan Natives at 27.1% and Lesbian, Gay and Bisexual adults at 16.1%.⁴ Smoking has been found to be higher if a person’s income or education is lower, and if they are enrolled in Medicaid or uninsured.⁵ Certain populations are also disproportionately exposed to secondhand smoke, including: children ages 3-11, Black Americans, persons living in poverty and people with a high school education or less.⁶ Parts of the country, especially many Southern and Appalachian states remain unprotected from secondhand smoke in public places and workplaces at the state level.

State Grades 

In 2022, a number of states provided increased funding for programs to prevent and reduce tobacco use, but progress sadly stalled in other areas. 

• Eight states—Connecticut, Delaware, Florida, Maine, Maryland, Missouri, Oklahoma and Washington—registered funding increases of $1 million or in some cases significantly more.  
• No states increased cigarette taxes or passed laws eliminating smoking in public places and workplaces.  
• The District of Columbia allocated funding to implement the law stopping the sale of flavored tobacco products passed in 2021. California voters upheld the law eliminating the sale of flavored tobacco products and the law took effect in December 2022. In other state flavored tobacco product legislative pushes, including in Colorado and Maine, the tobacco industry showed its continued strength at the state level, successfully defeating both efforts.  
• Tobacco industry efforts to lobby state legislatures to pass laws that prevent local communities from passing their own stronger tobacco control policies continued in 2022. Unfortunately, these efforts were successful in Idaho, but failed in several other states, including Arizona, Missouri and South Carolina which means local communities will be able to continue to work on the city and county level to prohibit the sale of flavored tobacco products.

2022 saw several encouraging steps forward at the federal level. To ensure continued progress, in 2023, it is imperative that FDA and the Biden administration finalize its proposed rules to end the sale of menthol cigarettes and flavored cigars. When finalized, these rules will be the most significant, lifesaving action FDA has taken to regulate tobacco products in its 13-year history. It is also essential that the federal government take more impactful steps to implement and enforce the law against both synthetic and tobacco-derived e-cigarettes, including removing unauthorized and illegal products from the market. The country’s ability to end the youth vaping epidemic will depend on the actions the federal government takes over the next year. 

FDA and the Biden Administration propose rules to put an end to menthol cigarettes and flavored cigars in the U.S.; need to finish the job, and issue final rules as soon as possible in 2023

In April 2022, FDA met its 2021 commitment and issued two significant proposed rules that would eliminate menthol as a characterizing flavor in cigarettes and prohibit characterizing flavors in cigars. The proposal of these two rules is long overdue, and when finalized and implemented will significantly reduce tobacco use and save lives. The American Lung Association and more than 100 public health, consumer and health justice organizations submitted comprehensive comments in support of the proposed rules. In addition, the Lung Association submitted its own supplemental comments that also called on FDA to end the sale of flavored hookah tobacco and pipe tobacco. 

Ending the sale of menthol cigarettes and flavored cigars will improve health equity in the United States. The tobacco industry has engaged in a relentless effort since the 1950s of targeted marketing of menthol cigarettes in Black communities using advertising, free samples and Black spokespeople. Unfortunately, the industry has been highly successful in this effort, with over 80% of Black Americans who smoke using menthol cigarettes today, up from only 5% prior to the beginning of the targeted marketing in the 1950s. Because menthol cigarettes make it both easier to start and harder to quit, there has been more disease and death among Black Americans. In fact, a study released in 2021 found that menthol cigarettes were responsible for 1.5 million new smokers, 157,000 smoking-related premature deaths and 1.5 million life-years lost among African Americans from 1980–2018.⁷

Other important communities were not spared from this targeted marketing—women and LGBTQ people also have elevated levels of menthol cigarette use today due to relentless industry marketing. Meanwhile, flavored cigars now form a substantial part of the overall cigar market, and a higher proportion of youth and young adults start using cigars with flavored versions compared to older adults. Data from the 2021 National Youth Tobacco Survey (NYTS) show that 41.1% of high school students who smoke cigars and nearly 60% of middle school students who smoke cigars use flavored cigars, amounting to 160,000 youth.⁸

The significant evidence of the public health harms of menthol cigarettes and flavored cigars shows it is imperative that FDA finalize both these proposed rules right away. Too much addiction, disease and death has been caused by menthol cigarettes and flavored cigars to delay any longer. The Lung Association urges everyone to tell President Biden to finalize these important rules now.

Congress gives FDA authority over products containing synthetic nicotine, but too many flavored, illegal e-cigarettes remain on the market

The country continues to experience a youth vaping epidemic, according to CDC’s 2022 National Youth Tobacco Survey. Specifically, 14.1% of high school students and 3.3% of middle school students reported current e-cigarette use in 2022. Overall youth tobacco use, including e-cigarette use, stands at 16.5% among high school students and 4.5% among middle school students, a disturbingly high level.⁹ Flavored tobacco products, including flavored e-cigarettes, continue to be a big driver of youth tobacco use, with about 85% of kids who use e-cigarettes in 2022¹⁰ and close to 80% of youth tobacco users overall in 2021 using flavored products.¹¹ Flavored e-cigarettes and tobacco products continue to be available in a wide variety of flavors, attracting and facilitating addiction among our youth.

"To help address the continuing youth e-cigarette epidemic, the American Lung Association launched its End Youth Vaping initiative. It is an integrated, multi-component campaign to support parents, schools and students. Major components of the campaign include our Vape-Free Schools Initiative, which helps schools navigate this public health emergency with tools to protect and support both schools and students and the “#DoTheVapeTalk” youth vaping awareness campaign from the American Lung Association and the Ad Council to provide parents with a discussion guide to address the dangers of vaping with their kids, while they’re still willing to listen.”

On March 15, 2022, President Biden signed into law legislation that included a bipartisan provision giving FDA’s Center for Tobacco Products authority over products containing synthetic nicotine.² The Lung Association strongly supported this legislation, recognizing the proliferation of e-cigarettes and other nicotine-containing products that were avoiding important public health regulations by claiming to contain synthetic nicotine. PuffBar and Hyde, two brands popular among youth, were among the companies making these claims.

The new law set out clear deadlines for when FDA and other government agencies were supposed to implement the law, including removing products from the market that did not meet the deadlines established by Congress. The final deadline after which all synthetic nicotine products that did not have a pre-market tobacco authorization were on the market illegally was July 13, 2022. However, delays in enforcement have resulted in many of these flavored e-cigarette products remaining on the market.

 The Lung Association was pleased to see that the federal government started to take more serious efforts to enforce the law, including the DOJ seeking permanent injunctions against multiple e-cigarette companies to prevent them from selling their illegal, flavored products in October 2022. Several important steps FDA should take to better enforce the law include: 

1. Release a list that is updated regularly of products that are allowed to be sold, so public health organizations, state/local health departments, manufacturers, distributors, wholesalers, importers and retailers know which products are legal and can help ensure the law is followed; and 
2. Implement the track and trace system required under the Family Smoking Prevention and Tobacco Control Act passed in 2009 to be able to track tobacco products in real time.

FDA continues work on applications from both tobacco-derived and synthetic nicotine products; signals possible intent to issue nicotine reduction product standard for cigarettes 

FDA continues to be well-past both court-ordered and congressionally established deadlines to review pre-market tobacco applications (PMTAs) for e-cigarette products with nicotine derived from tobacco as well as thousands of new PMTAs for synthetic nicotine products. FDA issued its first marketing denial order for a menthol e-cigarette, Logic, in October 2022. They also issued marketing denial orders for a number of other flavored synthetic nicotine products, including a company growing in popularity with youth, Hyde. They had yet to complete the re-review of JUUL’s PMTA when this report went to press in January 2023. The Lung Association has repeatedly called for all flavored tobacco products, including e-cigarettes, to be removed from the marketplace. Flavors are a key driver of youth tobacco use, and no evidence has been presented that flavored products can meet the public health standard that the Tobacco Control Act requires. 

The Biden administration also announced as part of its unified federal regulatory agenda in 2022 its intention to issue a proposed product standard on reducing nicotine levels in cigarettes in 2023. The Lung Association supports reducing nicotine levels in all tobacco products, and sent a joint letter with the American Thoracic Society urging that if a proposed product standard is issued, it should apply to all tobacco products, including e-cigarettes and smokeless tobacco. 

Except for significant increases in funding for programs to prevent and reduce tobacco use and some progress on flavored tobacco products, 2022 was a disappointing year on the state and local level

For the first time in at least the past 10 years, “State of Tobacco Control” observed significant increases in funding for state programs to prevent and reduce tobacco use (tobacco control programs). Several states and large cities also passed or implemented laws ending the sale of most or all flavored tobacco products. However, aside from these positive developments, 2022 was a disappointing year for public policies on the state and local level. No states passed comprehensive smokefree workplace laws or increased tobacco taxes. States in the South, Appalachia as well as parts of the Midwest and Great Plains continue to lag significantly behind on establishing proven policies called for in “State of Tobacco Control,” and made little to no progress in 2022. 

• Funding for State Tobacco Prevention and Cessation Programs: 2022 proved to be a positive year for state funding provided to tobacco control programs with eight states registering increases of $1 million or in some cases much more. Two states, Connecticut and Missouri, which had provided little or no funding for many years saw increases of $12 million and $2.5 million respectively. Unfortunately, most states continue to remain far short of the funding levels recommended by CDC. Properly funding state tobacco control programs is critical for addressing the youth vaping epidemic the country still faces. It can also bring crucial focus and resources to alleviate disparities in who uses tobacco products and help achieve health equity in tobacco control. Funding should be provided to organizations that directly serve the communities most impacted in specific states. In the current fiscal year, 2023, two states—Maine and Oregon—funded their state tobacco control programs at the level recommended by CDC.
• Eliminating Sales of Flavored Tobacco Products: With the removal of menthol cigarettes and flavored cigars by FDA years away, it is imperative that states and localities act to end the sale of all flavored tobacco products. In 2022, the District of Columbia provided funding in the city’s budget to allow the flavored tobacco product law passed in 2021 to take effect. California voters upheld the flavored tobacco product law passed by the legislature in 2020 that the tobacco industry had filed a ballot referendum against, finally allowing the law to take effect. Several other large cities and counties also passed flavored tobacco product laws, including Columbus, OH, Los Angeles, CA, Multnomah County, OR which includes the city of Portland, OR and San Diego, CA. However, only two states and the District of Columbia earn grades better than a “D” grade in this category this year, showing how much work remains to be done by state and local lawmakers. 
• Increasing State Tobacco Taxes: Increasing tobacco taxes by $1.00 per pack or more is one of the most effective ways to reduce tobacco use, especially among kids. However, no states increased cigarette taxes at all in 2022, and only Maryland has passed a cigarette tax increase in the past two years. Virtually all states had significant budget surpluses this fiscal year, a likely contributor to the lack of tobacco tax proposals. Currently, there is a wide variation in cigarette tax rates, with the lowest state cigarette tax in Missouri at a meager 17 cents per pack and the District of Columbia the highest at $4.50 per pack. The current state cigarette tax average is $1.91 per pack. 
• Smokefree Public Places and Workplaces: It was a very disappointing year for advancement of laws to protect people in public places and workplaces from secondhand smoke. For the 10^th year running, no state approved a comprehensive law eliminating smoking in public places and workplaces. The most positive news was a successful repeal of state preemption for age-restricted establishments in Tennessee. This led to the city of Nashville passing an ordinance in October 2022 making most age-restricted establishments smokefree as of March 1, 2023. Several states had success with engaging casino workers to advocate for closure of casino loopholes, efforts that the Lung Association hopes will bear fruit with passage of laws in 2023.   
• Expanding Medicaid and Tobacco Cessation Coverage: The biggest success seen in this area during 2022 was the passage of Medicaid expansion by ballot measure in South Dakota leaving only 11 states left that have not taken this important step. Medicaid expansion has been proven to expand access to quit smoking treatments and services. The Affordable Care Act expanded Medicaid coverage to individuals at 138% of the federal poverty level ($31,781 per year for a family of three) or lower. Individuals with incomes less than $35,000 a year smoke at rate of 20.2%, significantly higher than the general population (12.5%).¹² Research shows Medicaid quit attempts in expansion states increased by over 20%¹³. Other progress in improving cessation coverage in 2022 came out of Illinois. The state enacted a new law that requires a comprehensive cessation benefit with limited barriers in the state Medicaid program.  

Reducing the Availability and Accessibility of Tobacco Products. There are too many tobacco retailers in the United States. A study of tobacco product retailers in 30 cities in 2021 found that there are 31 times more retailers than McDonalds and 16 times more retailers than Starbucks. In addition, in most cities, tobacco product retailers were concentrated in the lowest-income neighborhoods¹⁴. States and communities should enact legislation to reduce the number of tobacco product retailers and prohibit them from being clustered together or near youth-focused locations like schools and childcare facilities. At the state level, two states – Massachusetts and New York – have prohibited tobacco sales in pharmacies, and Utah has prohibited new retail tobacco specialty businesses from locating in certain areas.

Tobacco industry continues its efforts to stop stronger local tobacco control policies

In 2022, the tobacco industry and its allies stepped up efforts to prevent local governments from passing stronger tobacco control laws—called preemption—continued. These types of laws deny local governments the ability to pass meaningful public policies to prevent and reduce tobacco use, including addressing the youth vaping epidemic or tobacco-related disparities. Unfortunately, legislation was approved in Idaho that prevents communities from passing laws stronger than current state law to further limit tobacco product sales. Such efforts were opposed by the Lung Association and other public health organizations in several other states, including Arizona, Missouri and South Carolina. The Lung Association expects the tobacco industry to continue its full court press on this issue in 2023. 

“State of Tobacco Control” 2023 continues to provide a blueprint that states and the federal government can follow to put in place proven policies that will have the greatest impact on reducing tobacco use and exposure to secondhand smoke in the U.S. The real question is: Will federal and state lawmakers take more significant action in 2023 to make a tobacco-free future possible?