Programme planning and legislative preparations

Participants widely recognised that comprehensive bans on flavoured tobacco products set a strong foundation for effective implementation (table 1). As one participant described, ‘Look at the places which have exceptions. Those laws are much harder to enforce, because the rule is complex. If you just say, “we’re not allowing the sale of flavored tobacco products, period,” it’s also easier for the retailers because they don’t have to get into these questions.’

In a variety of contexts, partial bans and exemptions have proven difficult to enforce, requiring additional legislation to address unforeseen consequences. For example, several jurisdictions described that in response to policies exempting adult-only retailers, convenience stores had sectioned off retail space to create ‘adult-only’ spaces to sell flavoured tobacco products. Specifically pertaining to the drafting of legislation, several participants highlighted the need for comprehensive language to avoid such loopholes.

Additional legislative considerations included predetermining responsible actors for enforcement and ensuring these parties had requisite statutory authority for enforcement. There was consensus that penalties written into the proposed legislation should target retailers, not users, especially not underage users.

Menthol was identified as an essential, but challenging element. Some indicated that if menthol was excluded from tobacco legislation, key advocates would likely withhold their support. Several participants strongly framed flavour bans as a health equity issue, highlighting the need to reach populations historically targeted by the tobacco industry (racial/ethnic minorities; sexual and gender minorities; and adolescents) to ensure they achieved equal protection under the new policy. As one participant reflected, ‘The people with the least resources, the people that are least informed, the folks that are in the most precarious position, are the ones using this product. If we’re going to deal with health disparities, then we have to deal with that issue. Menthol is at the core.’ Yet, some participants recognised the political expedience of exempting menthol from policies, considering its high value to the tobacco industry and to local and state governments given associated revenues generated from tobacco taxes.

Regarding potential economic and financial considerations of a flavour ban, one common argument against adopting similar policies is that retailers will be forced to close their businesses due to lost revenue. However, participants consistently reported limited evidence of retailers closing due to flavour bans.

Education and community outreach

Media campaigns were identified as important to increasing general awareness of flavoured tobacco products, their health impacts and details of the proposed policy (table 2). Respondents recommended that both flavoured tobacco and menthol-specific campaigns should be employed to educate the public about the risks associated with these products, and that menthol campaigns could specifically expose exploitation by the tobacco industry. According to one participant: ‘Raising broad awareness of that as an issue both helps lay the groundwork for effective enforcement and will also help build support for legislation… I would try to start as aggressive and loud a public education campaign on these issues as possible.’

Several participants strongly suggested that advertisements for cessation resources complement any campaign, and requisite funding should be set aside for this purpose.

Identifying and engaging community partners throughout the legislative and implementation process emerged as a clear message across multiple jurisdictions. It was recommended that community members, especially priority populations, be at the centre of policy and campaign efforts to shape messaging, inform educational efforts and mitigate potential misunderstandings of a proposed policy. Engaging youth was also identified as a highly effective approach, particularly in the legislative setting, recognising that the organised, coordinated turn-out of youth and community activists in public hearings has been important in other settings. Other suggested key actors include law enforcement and religious groups. It was portrayed that strong local engagement can heighten pressure on elected officials, lead to increased ownership of an issue or specific policy and build community commitment to effective implementation.

Treating tobacco retailers as partners also emerged as an important theme. Respondents cautioned about coordinated retailer advocacy in opposition to proposed legislation due to concerns about lost sales, particularly for specialty shops. At the same time, participants stated that retailers generally want to comply with a new policy, but need support to fully understand the intent, criteria and implications of flavoured tobacco legislation.

Implementation and enforcement procedures

An ideal timeline to prepare for implementation was identified as 3–12 months (table 3). It was noted that local, state and federal rules and regulations could impact the timeline. Six months was identified as the average amount of time to erect the necessary infrastructure. Participants acknowledged that grace periods were critical for education, permitting retailers to sell down flavoured tobacco inventories, and enforcement agents to conduct warning visits. Several respondents stressed that policies should be implemented as soon as possible to avoid loss of momentum and public interest, while others emphasised that too short of an implementation period could be chaotic for retailers and enforcement agencies. A slightly longer timeline was expected for state-wide bans to coordinate all of the key players.

Retailer education was widely seen as a key step in the implementation phase and was regarded as a lengthy, resource-intensive process. Several participants noted that knowledge of existing retailers was critical in creating appropriate educational materials. One-on-one outreach was generally regarded as the most effective approach in providing education and answering questions, and in some jurisdictions, this required volunteer support from the community.

Town halls were resoundingly rejected as a useful approach for retailer education, as this format is often inaccessible for retailers working long hours and leads to venting of frustration by the most vocal critics rather than targeted education and relationship building.

Respondents clearly indicated that there is no single approach to enforcement of flavoured tobacco regulations. Commonly involved parties included departments of health and law enforcement, but no two jurisdictions involved the same array of actors. Stand-alone fines were not seen as an effective deterrent for retailers. The participants firmly conveyed that a combination of fines, suspensions and revocations would be necessary, noting that this approach is currently employed in many jurisdictions. Closely related, determining an appeals process was identified as an important consideration.

Establishing procedures for identifying flavours was also highlighted as a key element, including the use of sniff tests and processes for contestation. Concept flavours (tobacco products with characterising flavours not clearly identifiable as fruit, dessert or menthol) were one of the most important challenges and evolving enforcement issues. Products combining menthol and fruit flavours were also recognised as attempts to evade regulatory language. Participants reinforced the importance of setting clear protocols for identifying concept and combination flavours. However, it was cautioned that creating comprehensive lists of banned products was nearly impossible to maintain as the number of products proliferates into the tens of thousands.

An alternative suggestion was to create a list of non-flavoured tobacco products that can be sold as opposed to maintaining a list of banned products. This recommendation would entail developing a certification, approval and appeals process. For example, manufacturers would certify under oath, with a penalty for making a false statement, that their products do not contain characterising flavours. The designated enforcement agency would then be responsible for product review and approval. Though not yet attempted, a non-flavoured product list would put the onus on the tobacco industry to prove that their products are not flavoured, reducing work for public enforcement agents.

Policy impact

Several participants reinforced the importance of baseline data collection prior to passage and implementation of flavour policies to demonstrate impact (table 4). Participants highlighted the importance of disaggregated data focusing on vulnerable populations, data targeting flavours and menthol separately, and collecting information specific to different geographies. Of particular note, participants mentioned the limited data regarding internet sales, which has not been identified as a key purchasing outlet in many jurisdictions where policies have been passed.

Participants uniformly stated that bans or restrictions in their jurisdiction had been successfully implemented. Typically, this was evidenced by high retailer compliance based on purchase and inspection data. At the same time, past and pending litigation and the potential for legislative pre-emption were perceived as constant threats across jurisdictions large and small. Several respondents saw coordinated industry pushback throughout the legislative and implementation processes as proof of the impact of these tobacco policies. According to one participant, ‘This is really striking at the heart of their new markets…This is one of those issues that isn’t going to be over for a while, because the industry is going to counterattack. But that’s just evidence about how important it is.’ Still, participants from some jurisdictions felt that lawsuits at the local level were hindering broader action at the state level.