Key Findings

“State of Tobacco Control” 2024: Menthol Cigarettes and Flavored Cigars Continue to Addict Kids and Make it Harder for Tobacco^* Users to Quit; Biden Administration Delays FDA Rules that would Halt their Sale 

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. These proven-effective and urgently needed tobacco control laws and policies save lives. 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.

“State of Tobacco Control” 2024 finds that the tobacco industry and its allies’ influence in Washington, DC remains strong as they have convinced the Biden administration to delay finalizing lifesaving rules to end the sale of menthol cigarettes and flavored cigars further into 2024. The White House delaying final action on the rules will result in increased addiction, disease and death from tobacco products especially among Black persons in the U.S. and make achieving the Biden administration’s Cancer Moonshot goals much more difficult.  

* All references to tobacco use, tobacco control or tobacco products in this document refers specifically to the use of manufactured, commercial tobacco products and not to the sacred or traditional use of tobacco by American Indians and other communities.

Federal Government Fails to Move Forward on Historic Efforts to Reduce Tobacco Use 

To fulfill its goals to reduce cancer deaths and improve health equity, the Biden administration needed to finalize the menthol cigarette and flavored cigar rules. Failing to end the sale of menthol cigarettes and flavored cigars will result in more death and disease caused by smoking, especially among historically marginalized communities. The tobacco companies have engaged in a relentless effort since the 1950s of targeted marketing of menthol cigarettes in Black communities using advertising, free samples and donations to Black community organizations. Unfortunately, they have been highly successful in this effort, with over 80% of Black individuals in the U.S who smoke using menthol cigarettes today, up from only 10% prior to the beginning of the targeted marketing in the 1950s. Menthol cigarettes make it both easier to start and harder to quit by reducing the harshness of the smoke and cooling the throat. This has led to more disease and death among Black communities. 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 1980–2018.¹

In addition, 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 2023 National Youth Tobacco Survey (NYTS) show that 64.8% of middle and high school students who smoke cigars use flavored cigars, amounting to 270,000 kids.² Menthol flavored little cigars can also easily act as substitutes for menthol cigarettes if their sale is not prohibited at the same time.

Based on Canada’s menthol cigarette prohibition and projecting those results to the U.S., one study found removing menthol cigarettes from the marketplace in the U.S would result in over 1.3 million people quitting smoking, including over 381,000 Black individuals.³ The delay of the menthol cigarette and flavored cigar rules puts these significant public health gains at risk. It will also make President Biden’s Cancer Moonshot goal of preventing more than 4 million cancer deaths by 2047 that much more difficult to achieve.

FDA must also finalize its review of all pending premarket tobacco product marketing applications. More than two years after the September 9, 2021, deadline established by court ruling, FDA has not yet completed its review of the millions of e-cigarette products that had submitted pre-market tobacco product applications. The FDA has not granted a marketing authorization to any menthol e-cigarette or other e-cigarette with a flavor other than tobacco to date, a major victory for lung health. However, e-cigarette companies – including Juul, RJ Reynolds and many others – have filed multiple lawsuits challenging FDA marketing denial orders. Many pre-market tobacco applications for e-cigarettes and other tobacco products submitted after September 9, 2020, remain unaddressed by FDA as well.    

The federal government’s enforcement against illegal e-cigarette products has been decidedly more mixed, but 2023 showed an increase in meaningful action taken against companies engaged in distribution of illegal products, notably including wholesalers, manufacturers and importers. In addition, FDA worked with U.S. Customs and Border Protection in 2023 to block the import of a number of brands of e-cigarettes and to seize e-cigarettes at the border. The U.S. Department of Justice (DOJ) also filed for a permanent injunction against an additional e-cigarette manufacturer in December 2023 and the seventh manufacturer overall. However, millions of flavored illegal e-cigarette products remain available for sale across the country contributing to the 2.13 million middle and high school students that continued using e-cigarettes in 2023 according to the Centers for Disease Control and Prevention (CDC)’s 2023 National Youth Tobacco Survey.⁴ Indeed, the most popular brand among kids – Elf Bar – simply changed its name to avoid importation enforcement efforts.⁵ Continued enforcement actions by the DOJ against manufacturers, importers and distributors selling illegal products will be necessary to get the situation under control. 

The decline in adult cigarette smoking rates stalled out according to the most recent data, staying at 11.6% in 2022 compared to 11.5% in 2021, according to results from the CDC’s 2022 National Health Interview Survey. Overall adult tobacco use actually increased in 2022 though, driven by a rise in adult e-cigarette use from 4.5% to 6%.⁶ The increases in e-cigarette use over the past two years have been driven by the 18- to 24-year-old age group and 65.5% of e-cigarette users in this age group did not smoke cigarettes previously in 2022.⁷

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.⁸

Overall tobacco use rates also mask significant disparities in tobacco use among races/ethnicities and among socio-economic levels. Tobacco use remains alarmingly high among: Lesbian, Gay and Bisexual adults at 26.1% compared to 19.5% among heterosexual adults; adults enrolled in Medicaid (27.9%) and with no health insurance (26.6%) compared to 17.4% of adults with private health coverage; and among adults ever diagnosed with anxiety or depression at 27.0% compared to 16.8% among persons never diagnosed with either.⁹ Certain populations are also disproportionately exposed to secondhand smoke, including: children ages 3-11, Black people in the U.S., persons living in poverty and people with a high school education or less.¹⁰ Parts of the country, especially many Southern and Appalachian states remain unprotected from secondhand smoke in public places and workplaces at the state level. 

States Continue Inadequate Efforts to Reduce Tobacco Use 

It was a disappointing year for passage of state policies to prevent and reduce tobacco use in 2023. Some progress was made on increasing funding for tobacco prevention programs but only one state – New York – passed a significant cigarette tax increase. No state enacted comprehensive smokefree air or flavored tobacco product laws. 

• Nine states—Florida, Indiana, Kansas, Kentucky, Nebraska, New York, North Dakota, Texas and Wisconsin—registered funding increases for programs to prevent and reduce tobacco use of close to $1 million and in some cases significantly more. Monies from the recent state settlements with Juul contributed to the funding increases in some of these states. However, there were decreases in tobacco prevention funding of $1 million or more in Nevada, Ohio and Washington state. Four states received “A” grades in this category in “State of Tobacco Control” 2024 while 41 states and the District of Columbia received “F” grades.
• New York increased its cigarette tax by $1.00 per pack, making it once again the highest state cigarette tax in the country at $5.35 per pack. The District of Columbia was the only jurisdiction to receive an “A” grade in Tobacco Taxes in “State of Tobacco Control” 2024 while 31 states received “F” grades.
• No states passed laws eliminating smoking in public places and workplaces in 2023. This marks the 11th straight year where no state has passed a comprehensive smokefree law. Illinois did add e-cigarettes to its comprehensive smokefree law. There were disturbing rollbacks in smokefree laws in North Dakota (cigar bars) and Shreveport, Louisiana (casinos). 17 states and the District of Columbia received “A” grades in this category in “State of Tobacco Control” 2024 while 12 states received “F” grades.
• Despite robust campaigns in a number of states, including Hawaii, Maine, Minnesota, New York, Oregon and Vermont, no state approved laws eliminating the sale of flavored tobacco products. Massachusetts and the District of Columbia received “A” grades in this category in “State of Tobacco Control” 2024 while 45 states received “F” grades.
• Access to tobacco use treatment has increased because of Medicaid expansion in North Carolina and South Dakota in 2023. However, any gains have been overshadowed by the more than 13 million Medicaid enrollees losing healthcare coverage as a result of state Medicaid programs reviewing and disenrolling enrollees after the COVID-19 public health emergency was lifted. Often the terminations were for procedural rather than substantive or eligibility reasons. Twelve states received “A” grades in this category in “State of Tobacco Control” 2024 while five states received “F” grades.
• Tobacco industry efforts to lobby state legislatures to pass laws that prevent local communities from passing their own stronger tobacco control laws continued in 2023. Unfortunately, these efforts were successful in South Carolina, but failed everywhere else attempted, including in Arizona, Maine, Missouri and Ohio.

From the failure of the Biden White House to finalize the menthol cigarette and flavored cigar rules to the lack of progress at the state level, 2023 was a lost opportunity for moving forward on the proven public policies called for in “State of Tobacco Control.” The Biden administration must continue efforts to enforce against the importation, distribution and sale of illegal e-cigarettes. The increase in adult tobacco use in 2022 is a worrying sign, and an indication that state and federal lawmakers must redouble their efforts to prevent and reduce tobacco use in 2024.

White House bows to tobacco industry pressure and fails to finalize menthol cigarette and flavored cigar rules by the end of 2023

In an extremely disappointing end to 2023, the White House bowed to tobacco industry pressure and failed to move forward with finalizing rules to eliminate menthol as a characterizing flavor in cigarettes and prohibit all characterizing flavors in cigars. This lack of action prioritizes politics and tobacco industry profits over public health and if the White House fails to finalize the rules, will mean they cannot achieve President Biden’s Cancer Moonshot goal of reducing cancer deaths by half in 25 years. 

Menthol flavoring has been marketed and falsely perceived as a healthier alternative to non-menthol tobacco products.¹¹ For generations, the tobacco industry has intentionally targeted Black, Brown, youth, LGBTQIA+ and other communities with the marketing of menthol cigarettes. This false perception of less risk and relentless marketing has resulted in increased initiation with menthol cigarettes and high usage of menthol cigarettes, contributing to more tobacco-related death and disease as well as tobacco-related health disparities. Over 80% of Black individuals who smoke use menthol cigarettes.¹² Menthol cigarette use is also elevated among lesbian, gay and bisexual (LGB)^* individuals with 51% of LGB individuals who smoke using menthol cigarettes compared to 40% of heterosexual individuals who smoke.¹³

* National data is not available for transgender individuals.

Research shows menthol cigarettes increase both the likelihood of becoming addicted to cigarettes and the degree of addiction.¹⁴ Research also indicates that people who smoke menthol cigarettes are less likely than those who smoke non-menthol cigarettes to successfully quit smoking despite having a higher urge to end their tobacco dependence.¹⁵ As would be expected, the proportion of people who smoke who say they would quit in response to a menthol cigarette prohibition is higher among Black people than other demographic groups. One study projecting results from Canada’s menthol cigarette prohibition to the U.S. estimates 1.3 million people who smoke would quit, including 381,000 Black individuals.¹⁶

The FDA has not authorized any flavored e-cigarette for sale, now the federal government needs to continue stepped up enforcement efforts to remove illegal e-cigarettes from the market

FDA has yet to complete its court-ordered and long overdue review of millions of pre-market tobacco applications (PMTAs) for e-cigarette products with nicotine derived from tobacco that were supposed to be completed by September 9, 2021, as well as other products over which FDA asserted its authority in 2016. FDA has issued marketing denial orders for all flavored e-cigarette products it has reviewed to date, including all menthol e-cigarettes. This included one e-cigarette market share leader, Vuse Alto, but a final decision on Juul’s original application had yet to be completed at the time this report was finalized. The Lung Association has repeatedly called for all flavored tobacco products, including e-cigarettes, to be removed from the marketplace, and applauds FDA’s decisions to not authorize flavored e-cigarettes as part of its review process to date. Flavors are a key driver of youth tobacco use, and no evidence has been presented that shows flavored products can meet the public health standard that the Tobacco Control Act requires. 

Following the same litigation strategy as the big tobacco companies, many e-cigarette companies have filed lawsuits against FDA marketing denial orders for flavored e-cigarettes. The Lung Association has signed on to more than 20 amicus briefs with coalition partners in 2022 and 2023 asking courts to uphold these orders. FDA marketing denial orders have been upheld by all but two of the eight U.S. circuit courts to issue decisions on these cases to date.

Now, FDA and federal law enforcement agencies within the Department of Justice and at U.S. Customs and Border Protection (CBP) need to step up enforcement efforts against e-cigarettes and other tobacco products that are on the market illegally. Such efforts should be focused at the manufacturer, importer and distributor level, and involve removing illegal products from the market.

The Lung Association was pleased by the FDA announcement in May 2023 that e-cigarette products from several companies – Elf Bar, Esco Bar and Eon Smoke – were added to an FDA import alert red list with CBP in order to be detained at the border without conducting a full inspection at the time of entry. Additional e-cigarette products have been added to the list, and in December 2023, FDA worked with CBP to seize 1.4 million illegal e-cigarette products at the border. However, Elf Bar, the most popular e-cigarette with kids in 2023, was able to avoid enforcement initially by simply changing the name of its product, a disturbing loophole that needs to be closed. A recent U.S. Department of Health and Human Services Inspector General report looked at FDA enforcement against retailers from 2010 to 2020, and found that FDA did not always follow through with more serious penalties such as civil monetary penalties and no tobacco sales orders after sending warning letters.¹⁷ The Lung Association hopes recent actions may reflect increased enforcement.  

Enforcement efforts are crucial because the country continues to experience high rates of youth vaping. E-cigarettes remain the most used tobacco product by kids, according to CDC’s 2023 National Youth Tobacco Survey. Specifically, 10% of high school students and 4.6% of middle school students reported current e-cigarette use in 2023. Overall youth tobacco use, including e-cigarette use, stands at 12.6% among high school students and 6.6% among middle school students, a disturbingly high level.¹⁸ Flavored tobacco products, including flavored e-cigarettes all of which are illegal, continue to be a big driver of youth tobacco use, with 89.4% of kids who use e-cigarettes and 86.9% of youth tobacco users overall in 2023 using flavored products.¹⁹ Flavored e-cigarettes and tobacco products continue to be available in a wide variety of flavors, attracting and addicting our youth.

“To help address the continuing youth e-cigarette epidemic, the American Lung Association and the Ad Council launched the “#DoTheVapeTalk youth vaping awareness campaign to provide parents with the facts to address the dangers of vaping with their kids, while they’re still willing to listen.”

Fifth circuit ruling threatens access to tobacco cessation treatment; Biden administration highlights tobacco cessation as part of Cancer Moonshot Initiative 

The Affordable Care Act’s (ACA) preventive services provision requires most health plans to cover a comprehensive tobacco cessation benefit without cost-sharing. A lawsuit, Braidwood v. Becerra, threatens this coverage and coverage to all preventive services under ACA. In March 2023, a federal district judge limited the number of preventive services required to be covered without cost-sharing, although the Fifth Circuit Court of Appeals then stayed the decision. The Lung Association has been a part of numerous amicus briefs on this case and will continue to be involved as it moves through the courts to protect preventive services, including tobacco cessation.

Recognizing the cancer toll that tobacco causes, the Biden administration is focusing on helping people who use tobacco quit as part of the Cancer Moonshot Initiative. In July, the Department of Health and Human Services (HHS) released a draft “Framework to Support and Accelerate Smoking Cessation.” The Lung Association commented on how HHS can work to increase and improve cessation and improve health equity.

Final court outcome of graphic cigarette warning labels and reduction in nicotine levels in cigarettes product standard still pending

In December 2022, a U.S. District Court judge vacated FDA’s rule establishing graphic warning labels on cigarettes as required by the Tobacco Control Act. The decision is currently on appeal with the Fifth Circuit Court of Appeals and is another blatant example of the tobacco industry filing court cases in jurisdictions where they are likely to get the friendliest reception. The three-judge panel of the Fifth Circuit Court of Appeals had yet to rule on this case when this report went to press.

The Biden administration Fall 2023 Unified Federal Regulatory Agenda listed its intent to propose a product standard on reducing nicotine levels in cigarettes. The Lung Association supports reducing nicotine levels in all tobacco products, and sent a joint letter with the American Thoracic Society in 2022 urging that if a proposed product standard is issued, it should apply to all tobacco products, including e-cigarettes and smokeless tobacco.

FDA releases five-year strategic plan

In December 2023, FDA’s Center for Tobacco Products released a five-year strategic plan, the first time since the center’s creation in 2009 that such a plan has been put forth. The Lung Association submitted comments on a draft version of the strategic plan in August 2023 that focused on many of the policies and actions detailed above. The final strategic plan is a high-level document, lacking any specific policy actions. The Lung Association will be following the implementation of this strategic plan closely, and encouraging FDA to continue to implement the Tobacco Control Act in a way that promotes public health.

2023 was a mostly disappointing year for passage of tobacco prevention policies on the state and local levels

No states passed comprehensive smokefree workplace laws or comprehensive flavored tobacco product laws in 2023. While North Carolina and South Dakota officially expanded their state Medicaid programs, at least 13.3 million of enrollees that lost Medicaid coverage with the unwinding of the Medicaid continuous coverage requirements during the Covid-19 pandemic, far surpassed those coverage gains. Several states did register significant increases in tobacco prevention funding this fiscal year, but, unlike last year, it was offset by several significant decreases. New York did increase its cigarette tax by a $1.00 per pack but was the only state in 2023 to enact an increase.

Reducing the Availability and Accessibility of Tobacco Products Tobacco retailers are extensive in the United States, especially in urban areas. 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 neighborhoods.²⁰ 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. Both Chicago, IL and Milwaukee, WI took action to restrict where new tobacco retailers can locate in 2023, which is a trend the Lung Association hopes will spread to additional communities.

• Funding for State Tobacco Prevention and Cessation Programs: Momentum continued in 2023 for state funding for programs to prevent and reduce tobacco use with nine states – Florida, Indiana, Kansas, Kentucky, Nebraska, New York, North Dakota, Texas and Wisconsin – registering increases of close to $1 million or more. The monies from the settlement of the lawsuits against the e-cigarette company Juul with most states during 2022 and 2023 were largely responsible for the increases in many of these states. However, unlike in 2022, three states – Nevada, Ohio and Washington saw decreases in funding of $1 million or more. Adequately 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, 2024, one state – Maine – funded its state tobacco control program at or above the level recommended by CDC.
• Eliminating Sales of Flavored Tobacco Products: With the removal of menthol cigarettes and flavored cigars from the market by FDA in doubt, it is especially important that states and localities act to end the sale of all flavored tobacco products. Unfortunately, no states approved laws stopping the sale of flavored tobacco products in 2023, despite campaigns in a number of states, including Hawaii, Maine, Minnesota, New York, Oregon and Vermont. Local ordinances did continue to pass in communities in Colorado, Hawaii, Illinois, Maine and Ohio. However, only two states and the District of Columbia earned 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. One state – New York – did pass a $1.00 cigarette tax increase this year, increasing its state tax to $5.35 per pack, now the highest in the country. Many states still 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 New York now the highest at $5.35 per pack. The current state cigarette tax average is $1.93 per pack.
• Smokefree Public Places and Workplaces: Disappointingly, for the 11^th year running, no state approved a comprehensive law eliminating smoking in public places and workplaces, including restaurants, bars and casinos. Illinois did add e-cigarettes to its comprehensive smokefree law in 2023, and California’s governor vetoed a bill that would have allowed marijuana smoking and vaping in restaurants maintaining the state’s strong smokefree protections. There was minor progress on passing additional local smokefree ordinances in several states, but also disturbing rollbacks in smokefree laws in North Dakota (cigar bars) and Shreveport, Louisiana (casinos). This troubling lack of progress and even backsliding in some places on smokefree laws needs to be reversed.
• Expanding Medicaid and Tobacco Cessation Coverage: In 2023, North Carolina became the 40^th state to expand Medicaid. 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 ($34,307 per year for a family of three) or lower. Individuals with low incomes smoke at rate of 29.9%, significantly higher than the general population (11.3%).²¹ Research shows Medicaid quit attempts in expansion states increased by over 20%.²² Virginia also saw improvements in access to tobacco cessation coverage. The state passed legislation to prohibit the tobacco surcharge, which can discourage people who smoke from buying health insurance and has not been shown to help people quit.²³

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

In 2023, the tobacco industry and its allies continued their efforts to remove local control and prevent local governments from passing stronger tobacco control laws—called preemption. 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 South Carolina that prevents communities from passing laws stronger than current state law on flavored tobacco products, licensing of tobacco product retailers or regulating ingredients in tobacco products. Such efforts were successfully defeated by the Lung Association and other public health organizations in several other states, including Arizona, Maine, Missouri and Ohio. The Lung Association expects the tobacco industry to continue its full court press on this issue in 2024. 

“State of Tobacco Control” 2024 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 the actions needed in 2024 to stop tobacco companies from putting their profits ahead of public health in our country?