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Abstract
Objectives Characterise US residents’ exposure to restrictions on sales of flavoured electronic nicotine delivery system (ENDS), cigars and menthol cigarettes across states and time, and assess correlations between these policies.
Methods From 2022 to 2024, we compiled flavour policy locations from advocacy groups and online searches, located corresponding legal texts and reviewed these to identify policy details, including effective dates. Using census data, we calculated the proportion of state residents covered by each policy quarterly from 2009 to 2024 and estimated correlations between them and cigarette taxes.
Results By January 2024, menthol cigarettes, flavoured cigars and flavoured ENDS sales restrictions covered 17.6%, 18.1% and 28.1% of US residents. About 1 in 10 US residents is subject to flavoured ENDS restrictions without concurrent restrictions on flavoured cigar and menthol cigarette sales. Strong correlations between flavour policy coverage and cigarette tax rates indicate a need to adjust for exposure to a range of tobacco control policies in analyses evaluating any one of these regulations’ effects.
Conclusions While state and local adoption of restrictions on flavoured tobacco product sales has proliferated, flavour policy coverage for combustible tobacco products lags well behind that for ENDS. If this leads some people who vape flavoured ENDS to substitute towards flavoured cigars and/or menthol cigarettes, this policy combination could harm population health.
Policy implications Rapid implementation of proposed US Food and Drug Administration rules barring flavoured cigar and menthol cigarette sales is needed to ensure that regulation of more lethal, combustible tobacco products is not more lenient than restrictions on less harmful nicotine products.
- Public policy
- Surveillance and monitoring
- Disparities
- Electronic nicotine delivery devices
Data availability statement
All data relevant to the study are included in the article or uploaded as supplementary information.
This is an open access article distributed in accordance with the Creative Commons Attribution Non Commercial (CC BY-NC 4.0) license, which permits others to distribute, remix, adapt, build upon this work non-commercially, and license their derivative works on different terms, provided the original work is properly cited, appropriate credit is given, any changes made indicated, and the use is non-commercial. See: http://creativecommons.org/licenses/by-nc/4.0/.
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WHAT IS ALREADY KNOWN ON THIS TOPIC
Prior work has described tobacco product flavour restrictions in specific states and localities but not characterised state and local policy coverage nationwide.
WHAT THIS STUDY ADDS
Compiling a novel dataset on all US state and local policies restricting sales of flavoured electronic nicotine delivery system (ENDS), flavoured cigars and menthol cigarettes through 1 January 2024, we illustrate geographical and temporal variation in flavour policy coverage and identify strong correlations between these policies, as well as markedly greater exposure in metropolitan than rural areas.
HOW THIS STUDY MIGHT AFFECT RESEARCH, PRACTICE OR POLICY
By providing data on flavour policy coverage nationwide, this work will facilitate future research on such policies’ effects as well as replication to ensure analytic rigour. Additionally, the observation that 1 in 10 US residents is subject to flavour restrictions on ENDS but not cigars or menthol cigarettes supports the US Food and Drug Administration’s proposed rules barring sales of menthol cigarettes and flavoured cigars at the federal level, to ensure that the most harmful tobacco products are not also the most appealing.
Introduction
Since the US federal government prohibited non-menthol flavoured cigarette sales nationwide in 2009, at least seven states, Washington DC, and hundreds of US localities have permanently restricted the sales of flavoured electronic nicotine delivery system (ENDS), flavoured cigars or menthol cigarettes.1 2 Assessing these policies’ implications for population health requires understanding their geographic variation over time.
The primary previous effort to describe US variation in state and local flavour policies proposes a tool for evaluating their ‘comprehensiveness’, focusing on a single date: 31 March 2021.3 While that work highlights potentially significant variation, its aggregated summary data do not elucidate spatial and temporal patterns in flavour policy coverage. Moreover, by presupposing that flavoured tobacco product policies should be normatively ‘comprehensive’—that is, all tobacco and nicotine products available for sale should taste like tobacco and nothing else—that work obscures potentially consequential differences in combustible versus non-combustible tobacco products’ health effects. In particular, as the US Food and Drug Administration (FDA) and statute alike recognise that different tobacco products pose distinct health risks,4 with combustible products the most lethal,5–8 understanding how flavour regulations targeting one product class may affect use of another (more or less harmful) product is essential to assessing these policies’ costs and benefits. Such analyses require disaggregated data on the location and timing of flavour policies affecting different products, particularly those most frequently used in the US: cigarettes, cigars and ENDS.9
To catalogue this variation and facilitate analyses of these policies’ effects, data were collected on all US state and local policies limiting sales of flavoured ENDS, flavoured cigars or menthol cigarettes through 1 January 2024. In addition to illustrating geographical variation in policy coverage over time and estimating correlations between these policies, this paper provides the quarterly percentage of each state’s population residing in areas that limit sales of flavoured ENDS, flavoured cigars and menthol cigarettes as online supplemental file 1, to facilitate future research.
Supplemental material
Methods
Data
Data on all US state and local tobacco flavour policies were collected from early 2022 to fall 2024, as follows. First, a list of all US jurisdictions with flavour policies was compiled via an ongoing review of flavour policy lists posted by prominent advocacy groups,1 2 supplemented with independent reviews of news reports and municipal websites. Second, corresponding legislation and signed ordinance texts were located through LexisNexis, Municode Library, online searches and contacting local authorities when necessary. Each text was then reviewed by two different researchers to determine passage dates, effective dates and policy details (eg, products covered, flavours covered—ie, menthol/mint vs other non-tobacco flavours—retailer exemptions), reaching out to state and local governments to elucidate policy details that remained unclear following this review. Where the text of an ordinance gave multiple effective dates (eg, different dates for enforcement of different subsections), the date given for the subsection containing the flavour restriction was taken as the flavour policy’s effective date. Dates when regulations expired, were repealed or courts issued a stay were also recorded where relevant. Finally, in cases where the primary and secondary coder differed on a policy detail, Dr. Whitacre and/or Dr. Friedman conducted a tertiary review to resolve those disagreements.
Consideration was limited to policies that prohibit sales or restrict them to certain types of retailers throughout the designated jurisdiction (ie, state, county, unincorporated areas of a county, or municipality). Zoning restrictions that limit sales only within a particular distance of a school or playground, for example, were not included, as population data are not available to match these to the number of residents living in the affected zones (eg, within that distance of a school). Native American tribal nations’ policies were not covered here as documentation and accurate interpretation of tribal policies require expertise in different tribes’ policy-making processes and cultural norms.
To calculate the proportion of state-county residents living in areas covered by flavoured ENDS, flavoured cigar and menthol cigarette sales restrictions, US Census data on July 2020 resident populations were matched to each jurisdiction with a flavoured tobacco policy in effect on the first day of each quarter from 1 January 2009 to 1 January 2024. Using a static population measure ensures that changes in these proportions are driven by policy changes and not by assumptions in the Census Bureau’s modelling of intercensal population counts. However, it also means that these measures will not reflect true changes in local populations over time.
Henceforth, these proportions are referred to as flavour policy ‘coverage’.
Analyses
First, to clarify flavour policies’ geographic variation and changes over time, we mapped the proportion of US counties’ residents covered by each policy on 1 January 2024. Second, Pearson correlation coefficients quantify the relationship between the per cent of state residents covered by policies restricting sales of flavoured ENDS, flavoured cigars and menthol cigarettes, and cigarette tax rates—a policy tool critical to the reduction of smoking and tobacco-related disease10—annually. These correlations clarify whether analyses assessing one type of flavour policy’s effects need to adjust for the others to address likely confounding variables. Finally, we match county-level policy exposure data for 1 January 2024 to the 2023 Rural–Urban continuum codes,11 which classify counties/county-equivalents by population, metropolitan status and ‘adjacency’ (an indicator for non-metropolitan counties that border a metropolitan area and contribute a minimum proportion of their labour force to metropolitan counties). These enable assessment of differences in policy coverage by urbanicity and consideration of potential implications for geographic health equity (ie, if differences in tobacco policy exposure may narrow or widen disparities in tobacco product use and related health outcomes by urbanicity). Hypothesis tests are not presented, as population coverage calculations are based on a census rather than a sample.
Results
For ENDS, cigars and menthol cigarettes, respectively, the first recorded flavoured tobacco sales policies were in Providence, RI starting in March 2012; Philadelphia, PA starting in January 2007 (repealed in 2011); and Arlington, MA starting in March of 2015. As of 1 January 2012—the year a US cigarette company first entered the ENDS market12—no state or locality restricted sales of flavoured ENDS or menthol cigarettes, and only three restricted flavoured cigar sales: Maine, Santa Clara County CA and New York City. 12 years later, however, coverage had proliferated: on 1 January 2024, 7 states, Washington DC, and localities in another 9 states had ENDS flavour policies in effect (figure 1). Menthol cigarette restrictions were less prevalent and only observed when flavoured ENDS were also restricted (figure 2). Apart from Maine, this is true for flavoured cigars as well (figure 3). Indeed, all three products are subject to state-level flavour restrictions in Massachusetts, California and the District of Columbia. For states with local flavour policies in effect on 1 January 2024 but no state-level law, policy coverage ranges from 0.03% (Georgia) to 24.7% (Minnesota) for flavoured ENDS sales restrictions and 0.8% (Illinois) to 43.5% (New York) for both flavoured cigar and menthol cigarette sales restrictions. As of the start of 2024, 28.1%, 18.1% and 17.6% of US residents are covered by flavoured ENDS, flavoured cigar and menthol cigarette sales restrictions, respectively. Thus, about 1 in 10 US residents are covered by flavoured ENDS restrictions only, without concurrent menthol cigarette or flavoured cigar coverage. See online supplemental appendix for flavoured ENDS, flavoured cigar and menthol cigarette sales coverage by state on the first day of each quarter from 2009 to 2024, for all states with non-zero coverage in that period.
Per cent of US Residents Covered by Policies Restricting Sales of Flavoured ENDS on 1 January 2024. This figure maps the per cent of US county residents covered by a restriction on flavoured ENDS sales, using local population estimates from the 2020 US Census. Based on these coverage rates and corresponding population sizes, 28.1% of US residents were covered by a restriction on flavoured ENDS sales at the start of 2024. ENDS, electronic nicotine delivery system.
Per cent of US residents covered by policies restricting sales of menthol cigarettes on 1 January 2024. This figure maps the percentage of US county residents covered by a restriction on menthol cigarette sales, using local population estimates from the 2020 US Census. Based on these coverage rates and corresponding population sizes, 17.6% of US residents were covered by a restriction on menthol cigarette sales at the start of 2024.
Per cent of US residents covered by policies restricting sales of flavoured cigars on 1 January 2024. This figure maps the percentage of US county residents covered by a restriction on flavoured cigar sales, using population estimates from the 2020 US Census. Based on these coverage rates and corresponding population sizes, 18.1% of US residents were covered by a restriction on flavoured cigar sales at the start of 2024.
Table 1 presents Pearson correlation coefficients for the relationship between flavoured ENDS, flavoured cigar and menthol cigarette policy coverage annually beginning in January 2016—when each policy had non-zero population coverage in at least one state—as well as their relationship to state cigarette tax rates. These policies are all positively correlated and grow over time, with correlations between flavoured cigar and menthol cigarette policy coverage exhibiting the strongest relationship and fastest growth: from 0.04 at the start of 2016 to 0.88 on 1 January 2024. ENDS flavour restrictions are also strongly correlated with combustible flavour policies, reaching 0.60 and 0.64 for flavoured cigars and menthol cigarettes, respectively, by January 2024. Critically, while all flavour policies are positively correlated with cigarette tax rates, this relationship is strongest for ENDS, with a 2024 correlation coefficient of 0.62, suggesting that analyses of ENDS flavour restrictions’ effects are likely to be biased if they fail to adjust for cigarette tax rates as well as other flavour restrictions.
ENDS flavour policies’ correlations with other flavour policies and cigarette tax rates
Matching county-level policy coverage to Urban–Rural Continuum Codes elucidates a different type of variation: for each type of flavour policy, residents of metropolitan areas are far more likely to be covered than their nonmetropolitan counterparts (see figure 4). Moreover, this pattern is consistent: the average proportion of residents covered by each flavour restriction falls as metropolitan counties get smaller, with the lowest coverage rates in nonmetro counties. Restrictions on sales of flavoured cigars, flavoured ENDS and menthol cigarettes cover over six times more of the largest metropolitan counties’ populations than for rural counties (ie, non-metropolitan counties that are not adjacent to a metro area).
US flavour policy exposure by Urbanicity, 1 January 2024. Metropolitan areas are divided into three subgroups based on the city’s population size. Nonmetropolitan counties are divided into those designated as adjacent to a metropolitan area (“metro-adjacent”) versus not (ie, “not metro-adjacent”). County classification data come from US Department of Agriculture’s Rural-Urban Continuum Codes.11 ENDS, electronic nicotine delivery system.
Discussion
As US state and local policies limiting sales of flavoured ENDS, flavoured cigars and menthol cigarettes proliferated over the past decade, flavoured ENDS restrictions outpaced the others. Evidence of flavour policies’ strong positive correlations with one another and state cigarette tax rates underscores the need to account for all these policies when analysing any one flavour restriction’s effects, to avoid confounding. For example, evidence linking menthol cigarette sales restrictions to reductions in cigarette smoking prior to 202013—that is, before any US state restriction on flavoured ENDS sales had been in effect for more than a few months—suggests that analyses of ENDS flavour restrictions’ relationships to cigarette use will be biased downward if they fail to adjust for concurrent menthol cigarette restrictions, particularly when over 60% of US residents covered by ENDS flavour policies are also subject to restrictions on menthol cigarette sales (17.6%/28.1%≈62.6%). The same may be true for cigarette tax rates, calling for deliberate inclusion of tobacco policy covariates in any analysis attempting to separate out flavour policies’ effects.
Critically, observed patterns in policy adoption have worrying implications for health inequities. Given long-standing evidence of higher cigarette smoking rates and less smoking cessation in rural areas,14 markedly lower flavour policy coverage in rural than urban areas suggests that current variation in local policies may risk widening urbanicity gaps in tobacco product use and related disease. Such potential consequences for health equity underscore the need for federal action, particularly on the US FDA proposed menthol cigarette and flavoured cigar rules, to not only reduce the burden of tobacco-related disease but also ensure local policy variation does not augment existing inequities in tobacco-related morbidity and mortality.
The observation that about 1 in 10 US residents are covered by flavoured ENDS restrictions only, without concurrent menthol cigarette or flavoured cigar coverage, raises additional concerns: some people who use flavoured ENDS may respond to this policy combination by substituting towards flavoured combustible products.15 Given an indefinite delay on White House approval of the FDA’s proposed product standards to bar sales of menthol cigarettes and flavoured cigars,16 congressional action may be needed to ensure that the most harmful tobacco products are not also the most appealing.
Implications for ENDS flavour policies are somewhat more complex: FDA’s June 2024 marketing authorisations for four menthol ENDS products indicate that the agency’s review of their Premarket Tobacco Product Applications (PMTAs) found these products ‘appropriate for the protection of public health’. Future work will need to account for this authorisation’s implications for local policy coverage, as several local jurisdictions and New York state (but not New York City) explicitly exempt products with PMTA authorisation. Analyses testing for differential effects from ENDS flavour policies that include versus exempt menthol will also be important.
This research has several strengths. First, prior efforts to document tobacco control policies’ comprehensiveness have struggled to maintain consistent meaning over time as measurement scales are revised to accommodate market and policy innovation.17 18 We avoid this pitfall by cataloguing tobacco flavour policies by product and reporting their population coverage separately. Next, by assessing correlations between these policies, this work provides concrete guidance on potential confounders and the need to adjust for them in analyses focusing on any one type of flavour restriction. Finally, by publishing flavour policy coverage rates by state and quarter-year, this work will enable critical analyses to understand flavour policies’ effects and enable replication of that work to confirm findings and ensure methodological rigour. To the authors’ knowledge, this is the first study to publish such data on state and local flavour policy coverage for use by the broader research community.
This work has three key limitations. First, while every effort was made to compile a complete record of all state and local flavour restrictions implemented in the USA, it is possible that some were missed. Reassuringly, our approach was able to both identify flavour policies in several jurisdictions not included in prominent advocacy groups’ lists and rule out several policies listed by those groups that were either never implemented or misclassified. Second, this work does not cover tribal nations’ policies, due not only to challenges in obtaining the text of such policies, but also to open questions regarding different policies’ application to tribal members living outside of Native American Reservations. A separate effort is underway to characterise such policies for the largest tribal communities. Finally, we do not address PMTA registry policies here since those now in effect allow for the sale of flavoured ENDS products that have not received final marketing denial orders, and products whose FDA marketing denial order has been stayed pending a court case. Future efforts to update and extend these data as the policy context evolves will certainly be useful, as will research to assess how differential exposure impacts disparities in nicotine and tobacco product use, and related health outcomes.
Public health implications
State and local policy adoption has increased exposure to restrictions on flavoured ENDS, flavoured cigar and menthol cigarette sales in the USA. At the same time, 1 in 10 US residents faces flavour restrictions on ENDS but not cigars or menthol cigarettes. Rapid implementation of the FDA’s proposed rules barring sales of menthol cigarettes and flavoured cigars, either through regulatory channels or congressional action, is needed to avoid policy combinations that may make combustible tobacco products more appealing than non-combustible nicotine products.
Data availability statement
All data relevant to the study are included in the article or uploaded as supplementary information.
Ethics statements
Patient consent for publication
Footnotes
X @AlexCLiber
Contributors ASF and ACL conceptualised the study. ASF supervised the research and wrote the first draft. AC and MM compiled the list of jurisdictions with flavour policies and led efforts to obtain corresponding legal documentation. All authors participated in coding and confirming policy details and revising the manuscript. TRW generated figures and conducted statistical analyses. ASF is the guarantor.
Funding Research reported in this publication was supported by NCI and the U.S. Food and Drug Administration’s Center for Tobacco Products (award U54CA229974). The content is solely the responsibility of the authors and does not necessarily represent the official views of the NIH or the FDA.
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Competing interests No, there are no competing interests.
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