Submitted Photo Flavored e-cigarettes and vaping products remain common in North Dakota and the nation, despite the Food and Drug Administration ordering their removal from the market. Photo provided by the American Lung Association.

The American Lung Association (ALA) has released the 2025 State of Tobacco Control report grading North Dakota’s tobacco control policies.

The report evaluates state and federal policies on actions taken to eliminate tobacco use and recommends tobacco control laws and policies to prevent nicotine dependence and tobacco use by minors.

While the report gave North Dakota good marks for the funding of state tobacco prevention programs, smoke-free workplace laws and the availability of tobacco cessation services; the ALA handed down F grades for the level of state tobacco taxes and the continued availability of flavored tobacco products.

North Dakota currently taxes cigarettes at 25 cents per pack, while tobacco products such as pipe tobacco and cigars are taxed at 28% of the wholesale purchase price. Electronic cigarettes, vapes and nicotine pouches purchases do include a sales tax, but according to information from the North Dakota Tax Commissioner such nicotine product purchases do not fall under the tobacco excise or wholesale taxes.

The possibility of increased taxes on tobacco products has come up at the 69th North Dakota Legislative Assembly in Bismarck, with two bills introduced in the House and Senate. House Bill 1570 would raise the price of cigarettes by over a dollar a pack. Senate Bill 2281 would increase the tax on cigarettes to 69 cents a pack, and increase the wholesale tax on cigars to 32 percent and tax e-cigarettes and vapes at 28 percent.

Pat McKone, senior director of advocacy for the ALA in North Dakota, said the organization supported these proposals, noting that North Dakota had the third lowest tax on a pack of cigarettes in the nation.

“It has been too low for too long. We are supporting the proposal. It hasn’t come to a committee yet in the house but it proposes to make it equal to South Dakota’s,” McKone said.

McKone said the ALA couldn’t support Senate Bill 2037, which would create juvenile court proceedings for minors aged 14 to 17 who have been charged with an infraction for purchasing, possessing or using tobacco products. Those aged 18 to 20 would be assessed a fee of $25. McKone noted the results of a recent compliance check report by the City of Minot which found 13 establishments had failed to check ID’s, saying the responsibility really should fall on the store or the seller.

“We know that kids are marketed to. We know they have been targeted for decades by the industry. We would look at this as a health issue. We definitely want consequences, but not one that brings a criminal record. It could be community service, or going through a course or something like that. But not a fine or a penalty,” McKone said.

While North Dakota does prohibit the sale of flavored cigarettes or roll-your-own tobacco other than menthol, the sale of flavored e-liquid and the electronic smoking devices are available to those aged 21 or older. On the federal level, the Food and Drug Administration has ordered for the removal of flavored cartridge-based e-cigarettes from the market, and has only approved 34 flavored e-cigarette varieties.

“The FDA has a division that regulates tobacco and nicotine products. They ruled that these industries and shops had to submit pre-authorization products to the FDA declaring what was in them. Literally there were millions of these forms, and the FDA was inundated,” McKone said. “In the meantime, the vape industry thought, ‘hey, I’m just going to keep doing business as usual.'”

Despite the FDA’s order, flavored disposable nicotine vapes and vape liquid have proliferated on the shelves of brick and mortar smoke shops and convenience stores. The FDA issued over 100 warning letters to such retailers selling such products, a majority of which are made by companies based in China. McKone said she had visited an establishment over the summer where she found a vape which purportedly contained 35,000 puffs of nicotine in it for less than $25.

“They also have vape devices that have video games on them. Ninety-percent of kids that are vaping, are vaping flavored products. We’re really in an epidemic of vaping among kids,” McKone said.

The issue could come to a head later this year through a pending case before the U.S. Supreme Court, who heard oral arguments in December in a case between the FDA and U.S. based two e-liquid manufacturers who are seeking FDA approval.

“The Lung Association really strongly believes the FDA, the Department of Justice, and other members of the multi-task force should act to remove all of these illegal products from the market. But there are a lot of them, and we do need legislation that requires these manufacturers to pay user fees to provide further oversight,” McKone said.