Trump considers retreat from ban of mint, menthol vaping flavors

Josh Wingrove, Gerald Porter Jr. and Michelle Fay Cortez

The Trump administration is considering backing away from a pledge to ban popular mint and menthol vaping products – part of an effort to stem use among kids and curb a growing health crisis – as e-cigarette advocates press to preserve some flavors for adults.

Health and Human Services Secretary Alex Azar said last month that the administration would soon ban all flavors of vaping products except tobacco-flavor. But the administration is reconsidering mint and menthol, two people familiar with discussions said. They asked not to be identified because no decision has been made.

People who don't want flavored vaping products banned gathered to protest the Board of Health's planned vote to follow Washington Governor Jay Inslee's directive to the state Board of Health to use its emergency authority to ban all flavored vaping products, including those containing THC. The board's vote was unanimous, with one member abstaining.

The unresolved deliberations show the Trump administration is grappling with a complex political dilemma around a product linked to a growing number of illnesses and deaths, but whose advocates say is less harmful than smoking.

An HHS official said vaping rules are still being drafted and declined to comment further. The Food and Drug Administration, part of HHS, said it aims to “clear the market of unauthorized, e-cigarette products in flavors that appeal to kids,” while declining to say which flavors, and whether mint and menthol will be allowed.

Health officials have said tobacco, mint and menthol are more popular among adults, while minors prefer other flavors. Government statistics released at the time of Azar’s announcement showed 64% of high-school vapers had used mint or menthol, behind only fruit flavors.

“The conversation is less about flavors and more about adults and youth,” White House counselor Kellyanne Conway told reporters on Friday. “And we recognize that menthol tastes – I recognize menthol tastes like tobacco. Many adults like menthol. Many adults like flavors. And so we’re going to have to wait to see what guidance HHS and FDA, who have jurisdiction over this, give.”

A White House official said President Donald Trump’s priority is to protect the health of children but declined to discuss plans for mint and menthol flavors.

The official cited a Trump tweet from Sept. 13, two days after Azar’s initial announcement, in which he said his focus was ending counterfeit products and keeping young children from vaping – but that he considers vaping a better alternative to cigarettes. Some vaping advocates saw the tweet as a sign that Trump was reconsidering the health secretary’s plan.

Health and Politics

Azar’s announcement that the U.S. would pull flavors other than tobacco came on Sept. 11 in the Oval Office. He was joined by Trump and first lady Melania Trump. He repeatedly said mint and menthol would be included in the ban.

“These products are still getting to kids and we cannot let a whole generation get addicted to them through mint and menthol and other flavors,” Azar told reporters at the White House that day.

He said producers could reapply to sell flavored products after proving a net-health benefit, likely by demonstrating they reduce smoking.

The debate over banning the products has grown more fraught as lung injuries linked to vaping continues to rise.

On Thursday, the U.S. Centers for Disease Control and Prevention said it identified 1,604 cases of a vaping-related ailment as of Oct. 22, up from 1,479 a week earlier. There were 34 deaths in 24 states. The ages of the deceased range from 17 to 75.

Also last week, Juul Labs Inc., the largest e-cigarette maker in the U.S., said it was suspending sales of most nicotine pod flavors nationwide. Fruit and dessert flavors, which the company was selling to people over 21 through its website, are no longer available in the U.S. pending a review by the FDA, Juul said. The company will continue selling mint, menthol and tobacco flavor pods in stores and online for now.

The company says it is not lobbying the administration on the issue, and will comply with the final policy, whatever it is. Even so, as Washington has turned up the heat on Juul, the company hired former Trump White House officials, including: Josh Raffel, a former spokesman; Johnny DeStefano, a former assistant to the president; and Rebeccah Propp, a former aide to Vice President Mike Pence.

GOP View

A full ban could come with a political price. The administration has received mixed feedback from congressional Republicans – with some supporting the ban as announced by Azar and others opposing it, one administration official said, speaking on condition of anonymity.

Republican lawmakers – including Wisconsin Senator Ron Johnson, North Carolina Congressman Richard Hudson and Virginia Congressman Morgan Griffith – have publicly expressed concern about a full ban. Hudson said it’s “not good policy making to ban legal products.”

Grover Norquist, an anti-tax advocate who is president of Americans for Tax Reform, said earlier this month that the administration’s plans are still up in the air, despite Azar’s announcement. The group actively pushed the White House against banning vaping and won’t say whether it receives financial support from the e-cigarette industry.

“This is not a done deal. This is a live issue,” Norquist said.

He said the president had initially received only data on vaping incidence – not corresponding data on the impact on smoking rates. His group has warned the White House that vaping advocates and retailers are a motivated voting bloc.

“They believe it is saving their life, making their health better,” he said. “They feel real good about themselves, and some jerk is messing with them and threatening to tax or regulate them, or pull the product off the shelves altogether.”

The administration likely will face outcry no matter its decision.

Vince Willmore, vice president of the Campaign for Tobacco-Free Kids, said that easing the originally proposed restrictions would undercut any benefit from the policy. “Leaving mint and menthol on the market is a recipe for the e-cig epidemic getting even worse,” he said.

Azar’s September announcement went further than FDA draft guidance from March that said the agency was planning to target flavors such as bubble gum and fruit, but not tobacco, mint and menthol. The document said mint and menthol are “preferred more by adults,” while others are preferred by children.

The timetable is unclear. In the Oval Office event six weeks ago, Azar said it would take “several weeks” to put out the final guidance, and that the new restrictions would be effective 30 days after that. The FDA said last week it planned to finalize a policy in “coming weeks.”

Greg Conley, president of the American Vaping Association, a nonprofit group that argues against restricting vaping products for adults, said the industry is trying to offer alternatives to prohibition, and backs limiting sales of flavored e-cigarettes to adult vaping shops and online distributors who have strict age verification policies.

“We’re in the middle of a moral panic, and bad policy often comes out of moral panic,” he said.

He attended Trump’s campaign rally in Dallas last week with vapers and small business owners, and warned that if a small percentage of disgruntled adult vapers in some states decided not to vote, the president’s re-election is “doomed.”

– With assistance from Robert Langreth, Ellen Huet, Drew Armstrong and Jordan Fabian.