Updated Comments from NACS on FDA allowing vaping products

By November 16, 2018Blog

Sent from NACS on Thursday, November 15 – 

Please note that my original memo to you this morning may no longer be accurate!

The Food and Drug Administration sent out an initial proposal that included language that appeared to allow for flavored vaping products to be sold by non-age restricted stores, as long as they were out of site.   That section read as follows (highlights added):

The compliance policy revision would not apply to these ENDS products sold in age-restricted locations – for instance, a stand-alone tobacco retailer (such as a vape shop) that adequately prevents persons under the age of 18 from entering the store at any time; or, a section of an establishment that adequately prevents entry of persons under the age of 18. Where the establishment itself is otherwise open to all members of the public, in this instance, flavored ENDS products should not be visible or accessible to persons under the age of 18 at any time. 

In the final version released by the FDA shortly after, the highlighted language was REMOVED, once again bringing into question whether or not convenience stores would be prohibited from selling these products at all if they did not have an adult only section.

We are currently reviewing what FDA is trying to do, or has done, and will advise NACS Members as soon as it is clear.

Original Memo – Sent Thursday, November 15, 2018

Good morning,

I wanted to make sure you have NACS’ statement on FDA Commissioner Scott Gottlieb’s proposed regulations on e-cigarettes and proposed ban on menthol cigarettes (attached).

It appears that the FDA has significantly backed away from its plans to prohibit convenience stores and gas stations from selling flavored vaping products.   We are thoroughly reviewing the proposal to ensure a correct interpretation, and will send NACS Members a more complete analysis as soon as that is complete   However, after initial reading it appears that the FDA is now limiting flavored vaping products to:


  1. Facilities that only allow adults to enter.
  2. Facilities that have an adults-only section.
  3. Facilities that allow the general public but keep the products in question out of sight (i.e. under the counter) from minors.

There appear to be no new restrictions on unflavored, or menthol vaping products. The FDA is also calling on an eventual ban on menthol cigarettes, but that process will have to go through many steps and is still years away.

Please let us know if you have questions and stay tuned to the NACS Daily for more updates.

Anna Ready
Director, Government Relations

Advancing Convenience & Fuel Retailing
1600 Duke Street
Alexandria, VA 22314 USA
+1 703.518.4227 | direct
+1 202.909.6937 | mobile

This message and any attachments to it may contain confidential information. If you are not the intended recipient and received this message in error, you should not read it, and any disclosure, copying, distribution, or use is strictly prohibited. If you received this message in error, please reply immediately to the sender by return e-mail, and delete this message from your system. Thank you.


Leave a Reply