On May 11, 2026, a bipartisan coalition of 21 state attorneys general submitted a comment letter urging the FDA to abandon the draft guidance entirely. The coalition was led by California AG Rob Bonta and New Jersey AG Jennifer Davenport.
The 21 Opposing States
California, Arizona, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nebraska, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, South Dakota, Vermont, and Wisconsin.
"The relative youth appeal of various flavors can change over time, including in response to market trends. The FDA's distinction between 'lower risk' flavors is fundamentally flawed."
— 21 State AG Coalition Letter, May 11, 2026
Key Arguments from the Opposition
| Argument | AG Position | FDA Response |
|---|---|---|
| "Lower-risk" flavors are flawed | Youth appeal shifts with trends; menthol/mint can become high-appeal | Based on current NYTS usage data showing fruit/candy preferred by youth |
| All flavors appeal to youth | Flavored products of all kinds are favored by youth over unflavored tobacco | Tiered approach reflects graduated risk, not a binary ban |
| Enforcement too lenient | May 8 enforcement guidance is too permissive on unauthorized products with pending PMTAs | Non-prioritized enforcement ≠ authorization; products remain subject to action |
| Draft should be scrapped | Urges FDA to abandon the guidance entirely | Draft remains active; FDA reviewing comments |
