Public health advocates came up just shy of their decade-long goal of banning the sale of menthol cigarettes in the U.S. this past fall. In October 2023, the U.S. Food and Drug Administration (FDA) submitted rules to ban the manufacturing and sale of menthol cigarettes and flavored cigars, but the office in charge of reviewing the rules has, so far, taken no action. Updating FDA rules is a long process, requiring multiple agency reviews, public comment periods and a development period that takes these findings into consideration.
Still, many in favor of the ban voiced their disappointment that the rules were not finalized before Jan. 20, 2024, which would have provided a year’s time to implement a ban before the start of a new presidential term.
They argued that the Biden administration likely caved to political pressure given the upcoming election and therefore did not take swifter action on the rules. “In an extremely disappointing end to 2023, the White House bowed to tobacco industry pressure and failed to move forward in 2023 with finalizing rules to eliminate menthol as a characterizing flavor in cigarettes and prohibit all characterizing flavors in cigars,” the American Lung Association stated in its annual State of Tobacco Control report. “This lack of action prioritizes politics and tobacco industry profits over public health.”
The report also noted that menthol cigarettes make it easier to start smoking and harder to quit due to the menthol’s ability to cool the throat and thus reduce the harshness of the smoke. It also pointed to research that has found that banning menthol cigarettes would save about 654,000 lives over the next 40 years.
“Removing these products from the market is backed by strong scientific evidence and hundreds of thousands of public comments from the public health community nationwide,” Nancy Brown, chief executive officer for the American Heart Association, another advocacy group calling for the ban, told NBC News. “The administration should not delay further in putting these rules into effect.”
The potential death toll related to menthol cigarettes would disproportionately affect Black smokers, 85% of whom smoke menthols, compared with 30% of white smokers, according to the FDA. Meanwhile, opinions differ among Black community leaders. Some back the ban. Still, others have argued against its implementation, voicing their concerns that Black communities that are already overpoliced could see serious consequences if the ban went into effect.
For example, the NAACP and Congressional Black Caucus have endorsed the ban for its ability to save lives, but some civil rights leaders fear that such a ban could criminalize menthol cigarettes and result in more police interactions. The Rev. Al Sharpton, president of the National Action Network (NAN) and well-known civil rights leader, opposes the ban, for example.
In a 2022 letter to Domestic Policy Council Director Susan Rice, Sharpton argued that a ban could lead Black smokers to use unregulated herbal menthol cigarettes that, in turn, would “promote criminal activity.”
“A menthol ban would impose serious risks, including increasing the illegal sale of smuggled black market menthol cigarettes as well as the street sales of individual menthol cigarettes, ‘loosies,’ and in turn place menthol smokers at a significant risk of entering the criminal justice system,” wrote Sharpton, who has often spoken of Eric Garner, who was killed by police in 2014 during an interaction in which Garner was confronted for selling loose cigarettes.
Critics of Sharpton and others who oppose the ban argue that the tobacco industry is influencing the rhetoric around the potential negative side effects of a menthol ban. Sharpton has publicly acknowledged that R.J. Reynolds is a supporter of NAN, yet he has not disclosed how much the tobacco company contributes.
“There’ll always be these kinds of red herring issues,” Yolanda Richardson, president and CEO of the Campaign for Tobacco-Free Kids, told The Hill. “For one minute it was overpolicing, now we’re hearing the issue is that Black men are going to be upset because they’re not going to have their menthol cigarettes.
So, there’s always a way for the industry to distort the facts, and there’s always a way for them to kick up sand in the gears.” The Office of Management and Budget, which is in charge of reviewing the FDA’s proposed rules, has stated that the review would not be completed until at least March of this year.
Even if the Biden administration finalizes the rules, however, tobacco companies would likely sue the federal government to rescind them.
For more background, see the December 2008 issue of Congressional Digest on “Tobacco Regulation.”
