On August 2, 2017, the Public Health Advisory Committee—a subcommittee of the Minneapolis City Council—approved an amendment to the 2015 Minneapolis ordinance that would restrict sales of all flavored tobacco products—notably, to now include menthol, mint and wintergreen tobacco products—to “tobacco product shops”. According to the committee, the amendment is necessary to “help dissuade young people from smoking and to call out the aggressive marketing to youth and communities of color”, which it apparently believes can be accomplished through restrictions on sales of menthol tobacco products.

Two days later, on August 4, 2017, the Minneapolis City Council (“City Council”) approved the amendment in a 10-2 vote, but not before adding further (critical) amendments: 1. Updating the definition of “tobacco products” to clarify that menthol, mint, and wintergreen flavored products are not included until August 1, 2018; and, 2. Including liquor stores within the types of establishments allowed to sell flavored tobacco under the ordinance.

 

So What Does this Mean?

Beginning August 1, 2018, gas stations, convenience stores, grocery stores, and the like will no longer be able to sell menthol, mint, or wintergreen tobacco products—in addition to the already-prohibited sale of other flavored tobacco products.

 

The Original Amendment

On July 24, 2017, City of Minneapolis Health Department filed a Request for Committee Action seeking to approve an amendment to the 2015 Minneapolis Code of Ordinances, Title 13 Tobacco, Chapter 281 (“the 2015 Flavor-Ban Ordinance”):

to restrict sales of all flavored tobacco products, including menthol, mint, and wintergreen to tobacco product shops.

July 24, 2017 City of Minneapolis Request for Committee Action.

The Amendment contains two critical changes: 1. It redefines “flavored tobacco product” to include “menthol, mint, and wintergreen” tobacco products; and, 2. It restricts the sale of such newly defined “flavored tobacco products” to “tobacco product shops”.

 

Key Definitions

“Tobacco product” means products falling within either the definition of:

“Tobacco”-

cigarettes and any product containing, made, or derived from tobacco that is intended for human consumption . . ..

OR

“Electronic delivery device”-

any product containing or delivering nicotine, lobelia, or any other substance intended for human consumption that can be used by a person to simulate smoking in the delivery of nicotine or any other substance through inhalation of vapor from the product. 

See Minneapolis Code of Ordinances § 281.15; see also Minn. Stat. § 609.685(c).

Term	Before Amendment	After Amendment
“Flavored tobacco product”	any tobacco product or component part thereof that contains a constituent that imparts a characterizing flavor, unless it imparts only the taste or aroma of menthol, mint or wintergreen. Minneapolis Code of Ordinances § 281.15.	any tobacco product or component part thereof that contains a constituent that imparts a characterizing flavor, which, beginning August 1, 2018 includes the taste or aroma of menthol, mint or wintergreen.
“Tobacco product shop”	a retail establishment with an entrance door opening directly to the outside that derives at least ninety (90) percent of its gross revenue from the sale of tobacco products . . . and in which the sale of other products is merely incidental. “Tobacco products shop” does not include a tobacco department or section of any individual business establishment with any type of liquor, food, or restaurant license. Minneapolis Code of Ordinances § 281.15.	a retail establishment with an entrance door opening directly to the outside that derives at least ninety (90) percent of its gross revenue from the sale of tobacco products . . . and in which the sale of other products is merely incidental. “Tobacco products shop” does not include a tobacco department or section of any individual business establishment with any type of food or restaurant license.

 

What is the Purpose of the Amendment?

According to the Request for Committee Action, menthol tobacco products are sold in 317 stores in Minneapolis, which affords youth access to the products; but, by limiting sales to “tobacco product shops” (about 25 stores in Minneapolis) the PHAC contends that it would prevent youth access. (stating that “[i]nternal tobacco industry documents indicate that convenience stores are considered to be ‘the single most effective outlet for reaching younger adult smokers.’”) Including menthol, mint, and wintergreen in the flavor-ban, would, according to the Public Health Advisory Committee (“PHAC”):

significantly reduce[ ] the availability of the remaining flavored tobacco products [ ] that are leading to youth initiation of tobacco use. Specifically, the availability of these products would be reduced from 317 tobacco retail outlets to 25 tobacco products shops.

July 24, 2017 City of Minneapolis Request for Committee Action.

 

Why Menthol?

The PHAC has set its sights on menthol tobacco products because:

Menthol tobacco products are harmful because 1) similar to other flavored tobacco, they mask the harsh taste of tobacco, making them more palatable to young people; 2) they are easier to get addicted to because menthol increases nicotine absorption leading to a stronger addiction than non-menthol products; 3) smoking mentholated cigarettes reduces the likelihood of successfully quitting smoking.

July 24, 2017 City of Minneapolis Request for Committee Action.

Minutes from the PHAC explain the committee’s intention that:

this is not a ban on menthol or mint flavor; menthol cigarettes are not illegal; and, people cannot be penalized for having them. They can be purchased at a tobacco-only shop which merely

increases the age for acquiring the products

June 27, 2017 Public Health Advisory Committee Minutes.

 

The Vote: 10 Ayes – 2 Nays

During the August 4, 2017, City Council meeting, council-members Gordon and Bender (co-authors of the ordinance), Yang and Council President Johnson spoke briefly on their positions. Those in favor of the ordinance discussed the major community and local government support for the amendment, and Councilman Gordon called for support for corner stores and convenience stores, asking that community members “uplift them during this process” to curtail their anticipated loss of revenue. On the other side, Council-members Yang and Johnson both founded their oppositions, in part, on the “inherent” unfairness of the ordinance and the fact that it won’t do what it purports it will do: dissuade youth from smoking.

Councilman Yang expressed several concerns including that he takes umbrage with making this type of policy decision so close to the election, stating that this type of action “makes for bad policy”. He further denounced the ordinance on the basis that this vote did not occur after a consumer-study was completed, noting that organizations in support of the ordinance did not participate in the study which makes him “wonder” what new information might have been found.  He also noted that there was already enough tension in police-citizen interactions, and this ordinance will make way for an illegal-menthol market, which is not something police should be spending time handling. Finally, he expressed concerns about the racial bias and unfairness this ordinance furthers, discussing in specific the fact that there are no tobacco stores in North Minneapolis, and therefore the same local smokers will be forced to commute to a tobacco store location to purchase this product.

Council President Johnson reiterated many of the same concerns and Councilman Yang, also responding to contentions at the previous meeting that this ordinance will create business opportunities in North Minneapolis as there are currently no tobacco stores. While that may have been true in theory, President Johnson noted that North Minneapolis businesses face significant challenges. She also noted that this ordinance simply burdens those who are already addicted to menthol cigarettes, it will not, in fact, prevent youth access as an increase in the legal age (to 21) would do—a movement with which she indicated support.

 

In Sum

Beginning August 1, 2018, menthol, mint, wintergreen, and any other “flavor” of tobacco and ENDS products can only be sold in “tobacco product shops” and liquor stores (to persons of legal age), and cannot be sold in: convenience stores, grocery stores, corner stores, gas stations, etc.