Big Tobacco could delay Biden’s menthol cigarette ban for years

In 2009, the Food and Drug Administration banned all flavored cigarettes in the U.S. Gone were the cherry, chocolate, clove, and other flavored options that tend to appeal to younger smokers. 

“Each day, 1,000 young people under the age of 18 become new, regular, daily smokers, and almost 90% of all smokers began at or before their 18th birthday,” said then-president Barack Obama, surrounded by public health advocates and lawmakers. “It’s a victory for health care reform, as it will reduce some of the billions we spend on tobacco-related health care costs in this country.”

There was, however, one major exception. Menthol cigarettes, the most popular flavoring by far, accounting for around 27% of the entire cigarette market, would remain on shelves. Instead, the bill required an FDA study on the medical and marketing effects of menthol cigarettes and their impact on Black and Hispanic Americans and other groups. About 85% of Black smokers use menthol products, and Black men have the highest rate of lung cancer in the U.S. 

At the time, anti-tobacco groups were told that a ban on menthol would kill the bill, and tobacco lobbyists convinced legislators, including members of the Congressional Black Caucus, to accept the compromise. “They buy influence when you have the deep pockets the tobacco industry has,” said William Robinson of the National African American Tobacco Prevention Network, at the time.

Now, 12 years later, the Biden administration finally has proposed a ban on menthol cigarettes and other flavored cigar products. On Thursday the FDA released a statement with the proposed rule change, citing numerous studies that show a ban would help people quit smoking. 

“One study suggests that banning menthol cigarettes in the U.S. would lead an additional 923,000 smokers to quit, including 230,000 African-Americans in the first 13 to 17 months after a ban goes into effect,” the FDA wrote. About 20 million Americans currently smoke menthol cigarettes, according to FDA data. 

Thursday marked a court-mandated deadline for the FDA to respond to a 2013 citizen petition advocating for the ban, which would not apply to e-cigarettes. 

Still, tobacco companies likely will have some time to prepare for any changes. The ban will need to go through a rulemaking process that could potentially take years. Once the rule is in place, it’s likely to then face a long litigation process as the tobacco industry brings legal challenges. 

The FDA proposed a similar ban three years ago under President Donald Trump, but the administration dropped the issue after facing scrutiny from a group of lawmakers representing tobacco-producing states, led by Republican Senator Richard Burr of North Carolina.

Advocates applauded Biden’s proposed ban. “The NAACP has been calling for a ban on menthol cigarettes and flavored e-cigarettes for years now, and we applaud the FDA’s latest plan to do just that,” wrote Derrick Johnson, NAACP president and CEO. “It’s about time we prioritize the health and well-being of African-Americans.

Others expressed concern that the ban would unfairly target communities of color. The American Civil Liberties Union (ACLU) and a number of other justice groups wrote in a letter this week that actions could have “serious racial justice implications” that “trigger criminal penalties,” and “lead to unconstitutional policing” against Black Americans. 

The Biden administration, however, has clarified that it would not target individuals who purchase or smoke menthol cigarettes. 

“If implemented, the FDA’s enforcement of any ban on menthol cigarettes and all flavored cigars will only address manufacturers, distributors, wholesalers, importers, and retailers,” FDA officials wrote Thursday. “The FDA will work to make sure that any unlawful tobacco products do not make their way onto the market.”

Newport cigarettes, which are made by British American Tobacco’s R.J. Reynolds Company, comprise about 66% of all menthol tobacco sales and are the second-largest selling cigarette brand. Kool, owned by Imperial Tobacco’s ITG Brands, makes up about 8% of the menthol market. 

Imperial called the decision “disappointing,” but expected. “We believe the rulemaking process will reveal that there is no clear scientific evidence to support a federal menthol and flavor ban. We are hopeful that FDA will follow the law and prioritize sound policy and science over political pressure,” the company said.

Altria, the tobacco-maker behind Marlboro that holds a 26% share of the menthol market in the U.S., said that a ban on menthol cigarettes would lead to an illegal, secondary market without FDA regulation. “We share the common goal of moving adult smokers from cigarettes to potentially less harmful alternatives, but prohibition does not work,” said the company in a statement. “Criminalizing menthol will lead to serious unintended consequences.”