The Biden administration is taking aim at the tobacco industry with a potential new rule that would ban menthol cigarettes and flavored cigars.
The Food and Drug Administration (FDA) last week sent the rule to the White House for review, the last regulatory step before it gets issued.
A menthol ban has been more than a decade in the making and would be one of the most consequential policies from the FDA since it began regulating tobacco in 2009. Health officials and tobacco-control advocates have said such a move could save hundreds of thousands of lives, particularly among Black smokers.
Public health and civil rights groups have long argued Black Americans have been disproportionately harmed by menthol cigarettes, as the tobacco industry deliberately targeted Black communities for decades.
An estimated 85 percent of Black smokers use menthols, according to the FDA, compared with 30 percent of white smokers. It is estimated that approximately 40 percent of excess deaths due to menthol cigarette smoking in the U.S. between 1980 and 2018 were those of African Americans
“These rules represent truly historic action to drive down tobacco use,” Yolonda Richardson, president and CEO of Campaign for Tobacco-Free Kids, said in a statement. “Once implemented, they will protect kids from tobacco addiction, advance health equity and save hundreds of thousands of lives, especially Black lives.”
Multiple administrations have considered such a ban, but advocates and health experts are praising the White House for being the only one to move forward amid intense industry pressure. They want the administration to quickly issue the final rules before the end of the year.
“We’ve literally been waiting for 12 years for FDA to move forward with the product standard that would remove both menthol cigarettes and flavored cigars from the marketplace,” said Erika Sward, assistant vice president of national advocacy with the American Lung Association.
“I really cannot understate how significant these rules will be in improving public health and by reducing the number of deaths caused by cigarettes in the years to come,” Sward added.
Menthol-flavored cigarettes accounted for more than a third of all cigarette sales in the U.S. in 2021, according to the Centers for Disease Control and Prevention. This is the highest proportion since major tobacco companies were first required to report that information to the federal government in 1963.
Scientists have long known that menthol in cigarettes can make them more addictive. Menthol creates a cooling sensation in the throat and airways, making the smoke feel less harsh and easier to inhale.
Congress banned flavored cigarettes as part of the 2009 law giving the FDA authority to regulate tobacco products, but a loophole exempted menthol.
Instead, lawmakers at the time directed the FDA to determine whether continued sale of menthol cigarettes was “appropriate for public health.”
The Obama administration solicited comments for potential regulation of menthol cigarettes in 2013, but it never proposed a rule. Then in 2018, the Trump administration revisited the issue under former FDA Commissioner Scott Gottlieb.
“I believe these menthol-flavored products represent one of the most common and pernicious routes by which kids initiate on combustible cigarettes,” Gottlieb said in a statement at the time.
But Trump’s FDA also failed to issue a formal rule. So when the Biden administration’s April 2022 proposals for a ban on menthol and flavored cigars were released, they represented a significant step forward.
“The authority to adopt tobacco product standards is one of the most powerful tools Congress gave the FDA, and the actions we are proposing can help significantly reduce youth initiation and increase the chances that current smokers quit. It is clear that these efforts will help save lives,” FDA Commissioner Robert Califf said at the time.
Mitch Zeller, who served as the head of the FDA’s tobacco center from 2013 until 2022 and helped draft the proposal, said he thinks it’s inevitable that the policy will be introduced.
“We’ve never gotten it to this stage before. And as far as I’m concerned, there’s no going back,” Zeller said.
Still, he acknowledged it should have happened earlier.
“It’s a fair question as to why it didn’t happen in earlier administrations, and I’m not going to try to defend the failure of prior administrations to move menthol forward. There’s no reason why this could not have happened years ago,” Zeller said.
Tobacco industry and retail groups argue that a federal menthol ban will not help smokers quit, because there’s no proven relationship between menthol and either increases in dependence on cigarettes or smoking initiation.
They also argue a ban would expand an illicit, unregulated marketplace of menthol cigarettes and will lead to more overpolicing in communities of color, similar to the war on drugs campaign of the 1980s and 1990s.
The ban would only apply to companies that manufacture, distribute or sell menthol cigarettes, not individuals who possess or use them. Still, critics of the ban often invoke civil rights arguments.
“I think there is an Eric Garner concern here,” Rev. Al Sharpton told The New York Times in 2019, referring to the Black man killed in 2014 after police stopped him on suspicion of illegally selling loose cigarettes. Tobacco giant Reynolds American reportedly enlisted Sharpton to lobby against a New York City ban on menthol tobacco products.
But tobacco control advocates and criminal justice experts said that while there is always a concern about overpolicing, they are skeptical that a menthol ban would compound the problem.
In California and Massachusetts, the two states that have already banned menthol, there’s been no direct correlation.
“There’s going to be more police interaction? There’s been no police interaction. This isn’t about stopping someone and asking them, ‘Are you smoking a menthol cigarette?'” said Philip Gardiner, co-chair of the African American Tobacco Control Leadership Council.
“There has not been one person arrested in any place in the United States for the possession of a menthol cigarette. That’s the distortion being put out by the tobacco industry and the mouthpieces that are speaking for them,” Gardiner said.
Keith Taylor, a former New York Police Department officer and an adjunct assistant professor at the John Jay College of the City University of New York, said the idea of an illicit market is “overblown.”
“When you look at this idea of an illicit market, who is being robbed of profits from the sale of menthol cigarettes? It’s not the general public, it’s not the communities that they’re sold in. It’s the cigarette producers,” Taylor said.
Taylor said he understands there could be tension between a federal rule and local law enforcement implementation. But he said it should be handled as a public health issue, not a public safety one.
“Is there potential to misuse the ban to generate arrest of young people for selling it? There’s always a potential, but the hope is that … banning this product will have the long-term benefit of saving lives and costing municipalities less,” he said.