Attorney General Keith Ellison warns against continued sales of unauthorized e-cigarettes and nicotine pouches

Letter to 5,000 distributors and retailers requests they stop selling unauthorized and illegal products; details the harm to youth from marketing and sale of unauthorized flavored tobacco products, consequences under federal and state law

August 29, 2024 (SAINT PAUL) – Attorney General Keith Ellison sent a letter to more than 5,000 tobacco distributors and retailers today asking them to stop distributing, marketing, and selling unauthorized and illegal flavored tobacco products in Minnesota. These products include flavored e-cigarettes and flavored nicotine pouch products that have not been authorized for sale by the U.S. Food and Drug Administration (“FDA”). In the letter, Attorney General Ellison describes the harms to minors and the public at large from these products, many of which use kid-friendly flavors, including candy and dessert flavors, and youth-centric packaging and product design to entice minors, potentially starting a lifelong addiction to nicotine.

“For decades now, everyone has known the dangers nicotine poses to young people — increased risk of addiction, respiratory problems, even brain damage. Today, I’m asking Minnesota businesses to join me in protecting young people by taking unauthorized products off their shelves — particularly ones that are illegally marketed toward kids — in accordance with federal and state law,” Attorney General Ellison said.

“Our goal is voluntary compliance. Most Minnesota business-owners are good people trying to do right by their communities, so I expect most will take swift action after receiving a reminder of the law,” Attorney General Ellison continued. “Any distributors or retailers that choose to defy the law and not comply, however, should know that my office has a wide range of options to ensure that they stop harming our children. I cannot and will not sit by and allow people to turn a profit by pushing toxins on our children.”

Under federal law, new tobacco products — whether they contain tobacco-derived nicotine or synthetic nicotine — must receive pre-market authorization from the FDA before they can be sold legally in the United States. As of mid-2024, the FDA has authorized only 34 e-cigarettes and 4 oral nicotine products to be sold in the United States.

In the letter, Attorney General Ellison notes that many unauthorized and illegal tobacco products on the market today include e-cigarette and oral nicotine pouch products that feature candy, fruit, or dessert flavors that are particularly appealing to minors. Teenagers and young adults that use nicotine are at risk of developing nicotine addiction, respiratory issues, and brain damage that can harm their attention, learning, mood, and impulse control. Because these products are unauthorized, they may contain other unlisted ingredients that expose users to additional harms.

Attorney General Ellison warns that the sale or distribution of unauthorized and illegal tobacco products may also violate several state Minnesota laws, including consumer-protection laws and a new law (2024 Minn. Laws Chapter 114, Art. III, §§ 50-51) that prohibits the advertising, sale, or distribution of e-cigarettes that are described or depicted as imitating candy, desserts, or beverages that are commonly marketed to minors, that imitate school supplies, or that are based on or describe characters that appeal to minors. Click here to see examples of unauthorized nicotine products.

In the letter, Attorney General Ellison asks Minnesota tobacco retailers and distributors to confirm they will comply with Minnesota law, refrain from advertising, selling, or distributing unauthorized and illegal tobacco products, and ensure that they will only advertise, sell, or distribute e-cigarettes and oral nicotine pouch products that have been authorized by the FDA.

The Attorney General additionally invites both industry and the public to report any instances of the marketing or sale of potential illegal e-cigarette or oral nicotine pouch products in Minnesota to the Attorney General’s Office in one of two ways: by emailing vaping@ag.state.mn.us or by completing the Illegal Vaping Products report form on the Attorney General’s website. These reports will help the Attorney General’s Office effectively monitor Minnesota’s marketplace and ensure businesses comply with Minnesota law.

Minnesota’s history of holding Big Tobacco accountable

Minnesota has a long history of holding Big Tobacco accountable. In 1994, Attorney General Skip Humphrey filed a landmark lawsuit against Big Tobacco, accusing the industry of lying about the addictiveness of cigarettes and purposely marketing to kids in an effort to create lifelong tobacco users. After years of litigation and a months-long trial in 1998, Minnesota reached a settlement with the largest tobacco manufacturers that restricted the manufacturers’ marketing of tobacco products, required publication of internal industry documents, and mandated annual payments to Minnesota totaling $6.5 billion. (In July 2024, Attorney General Ellison moved to recover $58 million in underpayments under the settlement.)

In December 2019, Attorney General Ellison sued e-cigarette maker Juul on behalf of the people of Minnesota, for violating Minnesota’s consumer-protection laws, breaching its duty of reasonable care, and creating a public nuisance. The lawsuit detailed how JUUL developed sleek devices and flavors that were appealing to youth, and how JUUL’s youth-oriented marketing deceptively attracted and addicted young people. In 2020, Minnesota amended its complaint to include Altria as a defendant: in 2018, Altria spent $12.8 billion to acquire a 35% share in JUUL.

Of the many state and local governments that sued JUUL or Altria, Minnesota was the first to go to trial. The trial began in late March 2023 as Attorney General Ellison delivered the first part of the State’s opening statement. After a trial at which the State presented 11 witnesses in support of its claims against JUUL and Altria, the parties reached a settlement in mid-April 2023.

Under the terms of the Consent Judgment, Juul and Altria will together pay a total of $60.5 million to the State of Minnesota over an eight-year period. The payment schedule is frontloaded: JUUL and Altria have already paid $35.5 million under the settlement, meaning that the State has received nearly 60% of the total value of the settlement in less than one year. Even after costs and fees, the value of Minnesota’s settlement was the largest per capita in the country. Because of legislation that Attorney General Ellison supported, the money Minnesota receives under the settlement goes to a special fund administered by the Minnesota Department of Health that is dedicated to preventing youth smoking and e-cigarette use. 

The settlement also imposes substantial conduct restrictions on Juul and Altria, and requires the companies to publish their internal documents related to the litigation in a public document depository.

Settlements with the tobacco industry are widely recognized as landmark public health achievements. Since 1998, overall cigarette use has declined by more than 50% and cigarette use among high school students dropped from more than 35% in 1997 to 1.9% in 2023.

Free help quitting nicotine

People looking to quit nicotine are not alone. Free nicotine-cessation help is available to all Minnesotans.

For teens, the My Life, My Quit program offers free and confidential help to Minnesotans ages 13 to 17 trying to quit commercial tobacco and nicotine. Teens can text, call or chat online with a quit coach, and receive age-specific materials. Teens can text “Start My Quit” to 36072 or visit https://mn.mylifemyquit.org/en-us/.

For adults, Quit Partner is Minnesota’s family of programs for people who want to quit. It offers coaching calls, text and email support, as well as medication like nicotine patches, gum, or lozenges. Call 1-800-QUIT-NOW (784-8669) or visit https://quitpartnermn.com/.