Item 39 - Ordinance Prohibiting the Sale of Flavored Tobacco Products

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FDA Actions on Electronic Cigarettes and Other Nicotine Products: The FDA has taken significant actions that have resulted in the removal of a substantial number of flavored electronic nicotine delivery system (ENDS) products from the market. These strong measures should be allowed to work to further reduce youth access to and use of electronic nicotine vapor products. Specifically, in February 2020, the FDA adopted a ban on the sale of all flavored cartridge-based and pod- based electronic cigarettes, except for tobacco and menthol flavored products. This action removed hundreds of ENDS products from the market. In addition, the FDA required that manufacturers of all electronic cigarette products file what is known as a pre-market tobacco product application(PMTA)with the agency by September 9, 2020, to keep their products on the market. The FDA was required to process those PMTAs within one year. That year elapsed in September 2021, and the Food and Drug Administration has thus far completed about 99% of the reviews of the Pre-Market Tobacco Applications it received by its September 2020 deadline.Most of the applications are for electronic smoking devices and products used with them. The FDA has thus far rejected over 6 million electronic smoking devices and has granted exactly one application for an e-cigarette,Vuse Solo,and for two tobacco- flavored cartridges used with that device. The FDA has also granted marketing applications for four flavored modern nicotine products,Verve Discs and Verve Chews in Blue Mint and Green Mint flavors. These are the first non-tobacco flavored products that have been granted marketing authority by the FDA. The significance of the Vuse and Verve decisions should not be lost on the Council. For the FDA to grant those applications, it was required to and did find, after exhaustive scientific studies, that the marketing of those products was "appropriate for the protection of the public health." By granting these applications, for the first time the FDA has stated that electronic smoking devices and modern oral nicotine products, including non-tobacco flavored versions of the latter, could protect public health. As the FDA is still working on the remaining 1% of applications (covering about 55,000 products) filed by the September 2020 deadline, it would be premature for the City to issue a blanket ban on all flavored tobacco products as the FDA may well grant marketing approval of other products,some of which may be flavored,that are"appropriate for the protection of the public health." The city's ban on those products would work against the public health benefits of those products. Voters Want to Decide Whether Flavor Bans Make Sense: California Senate Bill 793, which would have banned most flavored tobacco products statewide, has been referred to the voters who will vote in November 2022 whether to allow the statewide flavor ban bill to go into effect. Voters want their say on flavor bans.We respectfully suggest that deferring action until the voters have spoken is in the best interests of Santa Ana and its retailers. Store Closures and Layoffs May Follow the Proposed Ban: Our convenience store members recently experienced losses of up to 45%in gasoline sales and 20%or more in grocery,snack,beverage,and tobacco product sales during the recent market disruptions, significant numbers because convenience stores usually rely on tobacco product sales for approximately 36% of in-store sales. Tobacco specialty stores that rely on tobacco product sales for up to 90%of total sales will be devastated by the loss of hundreds of products. Additionally, retailers have recently found it difficult to attract and retain employees and combined with the effects of inflation,payroll costs continue to rise. If Santa Ana retailers must remove hundreds of products from their shelves, it will be very difficult to compete with retailers in neighboring localities or with illicit sellers who do not care to whom they sell their products. Employee layoffs and even store closures are real possibilities. National Association of Tobacco Outlets,Inc.,17595 Kenwood Trail,Minneapolis,MN 55044 952-683-9270 www.natocentral.org