Menthol spared from Trump e-cigarette flavor ban

“We have to protect our families,” President Trump said ahead of a New Year’s Eve celebration in Palm Beach, Florida. “At the same time, it’s a big industry. We want to protect the industry.”

Public health groups have long pushed for the government to crack down on e-cigarettes, which they say entice children through marketing fruity and candy-like flavors. More than 5 million U.S. middle and high school students report they have used e-cigarettes at least once in the past month, and roughly 1 million are using the products every day, according to government data.

Vaping has become prevalent among high and middle schoolers, even though it is illegal for most teenagers. The government funding bill Trump signed into law raised the legal age to buy tobacco, including e-cigarettes, from 18 to 21, beginning immediately in 2020.

The “open tank” products spared by the rule allow people to mix their own flavors, while the products affected by the rule are prefilled cartridges. The administration previously said it would ban menthol flavors, but has retreated from that plan, though it will still ban mint.

“I can’t see this as a win because the closed cartridge ban will cause more smoking, but open system vapers should be happy tonight,” Greg Conley, president of the American Vaping Association, said on Twitter.

The Department of Health and Human Services isn’t characterizing the rules as a “ban.” To come back on the market, the flavored products will need to be reviewed by the Food and Drug Administration. The agency will look at whether flavors can help adults quit smoking and whether they would encourage nonsmokers to start vaping.

Despite the announcement, e-cigarette companies still face a court-ordered May 2020 deadline to submit their products for review. E-cigarette companies say that the review process is far more burdensome on small vaping companies, who are up against massive, traditional cigarette manufacturers who are trying to break into the vaping market.

They have warned that the only company that stands to gain from leaving menthol on the market is Juul Labs, which counts cigarette giant Altria among its investors. Juuls look like USB drives and are very popular among young people, and the company is already compliant with the new rules because it recently stopped selling other flavors besides tobacco and menthol.

For the roughly 10 years e-cigarettes have been available, there has been tension between keeping the devices from teenagers and also making them available to adults who want to quit smoking. Government officials have feared that overly aggressive regulation could lead people to turn back to traditional cigarettes, which are linked to the deaths of 480,000 people a year.

HHS Secretary Alex Azar said in a phone call with reporters Thursday that Trump understood vaping was a “highly complex issue that requires a balanced approach.” He called the regulations a “smart, targeted policy that protects our kids without causing unnecessary disruption.”

Trump referred to the FDA review process when addressing the issue this week, though he also tied the issue to the separate problem of the serious lung illness outbreak that has killed 55 people and hospitalized 2,561.

“People have died from this. They’ve died from vaping,” he said. “We think we understand why. But we’re doing a very exhaustive examination, and hopefully, everything will be back on the market very, very shortly.”

Evidence suggests, however, that the serious lung illness is most likely linked to vaping THC, the high-inducing chemical in marijuana. Specifically, the culprit for the illness appears to be vitamin E acetate, a thickening agent. As officials have weighed regulations, they have had to consider whether their plans could send more people to the black market, worsening the spread of the deadly illness or failing to address it all together.

[Read more: E-cigarette users warn Trump that the real culprit is THC vaping]

In the call with reporters Thursday, Azar stressed it was important to distinguish the two vaping problems. The regulations that came out were meant to address the youth vaping epidemic. Scientists are still trying to figure out what exactly is causing the lung illnesses, and Mitch Zeller, who oversees tobacco regulation for the FDA, told reporters that they might learn several factors in vaping devices, from the oils to their hardware, may have contributed to the problem.

The compromise announced Thursday received criticism from public health groups, who want the Trump administration to regulate e-cigarettes far more strictly. Matthew Myers, president of the Campaign for Tobacco-Free Kids, accused the Trump administration of breaking its promise and warned that teenagers would start vaping menthol.

“By leaving menthol-flavored e-cigarettes widely available and completely exempting liquid flavored products, this policy will not stop the youth e-cigarette epidemic,” Myers said. “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.”

New Jersey Democrat Frank Pallone, chairman of the House Energy and Commerce Committee, slammed the Trump administration’s decision in a statement.

“A public health epidemic of this magnitude requires bold, decisive action,” he said. “Unfortunately, the Trump administration caved to industry lobbying pressure and decided to prioritize politics over people’s health.”

In the call with reporters Thursday, officials promised to monitor changes in e-cigarette use — particularly to see whether teenagers switch to menthol — and to make other changes if necessary. Azar said the administration had modified its initial position after seeing data that showed teenagers vaped mint but rarely used menthol, and that teenagers also rarely used the open-tank devices.