Democrat-Controlled Trade Tribunal Rules Against Menthol Vape-Maker, Contravening Trump’s Opposition to Menthol Bans

Imports of NJOY’s menthol vapes will be banned within 60 days unless the Trump administration takes action

A little-known, Democrat-controlled trade tribunal ruled against the maker of the country’s only FDA-approved menthol e-cigarettes, a controversial decision that seemingly defies several aspects of the Trump administration agenda. The commission issued the ruling before President Donald Trump could fill two vacant positions at the tribunal, which is required by law to have an equal number of Democrats and Republicans.

The U.S. International Trade Commission (ITC), which for the time being consists of three Democrats and one Republican, sided with Juul, the vape-maker, in a patent infringement complaint against rival Altria’s NJOY, which sells four menthol-flavored e-cigarettes. The FDA authorized the NJOY products in June, saying that they provide menthol smokers a healthy alternative to traditional cigarettes.

The ITC ruling, issued on Wednesday, bans imports of NJOY’s menthol vapes within 60 days unless the Trump administration takes action.

The decision by the Democrat-controlled commission is likely to draw the attention of the White House. Trump has fired numerous Biden administration holdovers and ordered federal agencies to halt policy decisions until his appointees take over.

The ruling also conflicts with Trump’s opposition to bans on menthol smoking products and to heavy regulation of flavored e-cigarettes. In his first week in office, Trump withdrew former president Joe Biden’s 11th-hour proposal to ban menthol cigarettes. Trump on the campaign trail accused the Biden administration of wanting to ban flavored e-cigarettes, vowing in September to “save Vaping again!”

“The Trump administration should see that the ghost of the Biden administration is trying to claw its way out of the grave to undermine tobacco harm reduction,” said Jeff Stier, a senior fellow at the Consumer Choice Center.

Stier noted that the ITC’s ruling focused only on the patent infringement issue at play over the e-cigarettes and ignored the health aspects of removing the only FDA-authorized menthol vape from U.S. markets.

“If it were to stand, adults are going to have even fewer choices. We’re taking a step backwards, and those smokers will be stuck smoking cigarettes, or going to the illicit market [for vapes],” Stier told the Washington Free Beacon.

Health experts have argued that pulling government-approved vapes from the market will bolster the sale of unregulated e-cigarettes, often from China, that contain higher amounts of nicotine and harmful chemical additives.

Elinore F. McCance-Katz, who served as assistant secretary of health and human services in the first Trump administration, said in December that the looming IFC ban “exposes Americans to health risks and diminishes public health.”

“Americans should not be denied products that have met FDA standards and have been declared by FDA to be a tool in the arsenal of smoking cessation devices when used with healthcare provider assistance,” she wrote last month in comments to the commission.

Other experts have national security concerns over the ruling, saying it will boost revenues that Chinese vape-makers funnel to the Chinese State Tobacco Monopoly Association (STMA), an arm of the Chinese Communist Party that licenses the country’s vape market.

“The STMA is already responsible for 10% of all the CCP’s revenue,” Richard Weitz, the director of the Hudson Institute’s Center for Political-Military Analysis, wrote to the commission. “Banning U.S. marketplace alternatives would only serve to inflate this number. Nothing would run more counter to accomplishing the mission of this Commission.”

If Trump vetoes the International Trade Commission ruling, he’ll have precedent.

In 2013, then-president Barack Obama vetoed the commission’s ban on older models of Apple’s iPhone as part of a patent infringement lawsuit involving Samsung.

The ITC declined comment.