Public health experts say the proposal could save hundreds of thousands of lives, especially among Black smokers — 85 percent of whom use menthol products.
The Food and Drug Administration on Thursday announced a plan to ban sales of menthol-flavored cigarettes in the United States, a measure many public health experts hailed as the government’s most meaningful action in more than a decade of tobacco control efforts.
The ban would most likely have the deepest impact on Black smokers, nearly 85 percent of whom use menthol cigarettes, compared with 29 percent of white smokers, according to a government survey. If effective in reducing smoking, the ban could significantly diminish the burden of chronic disease and limit the number of lives cut short by one of the most hazardous legal products available.
Menthol, a chemical derived from the mint plant that can also be made in a lab, is added to cigarettes to make smoking less harsh, providing a cooling sensation in the throat and making the experience more appealing. Menthol cigarettes make up about one third of the $80 billion U.S. cigarette market, and about 18.5 million Americans smoke them.
Banning them “would help prevent children from becoming the next generation of smokers and help adult smokers quit,” Xavier Becerra, the health and human services secretary, said, adding that it would significantly reduce tobacco-related deaths among Black people.
The proposed ban was announced after a frenzy of lobbying by tobacco and retail interests. Kingsley Wheaton, the chief marketing officer of British American Tobacco, which owns Reynolds, the leading seller of menthol cigarettes in the United States, said the company believed there were more effective ways to reduce the risk of tobacco than banning menthol.
“The scientific evidence shows no difference in the health risks associated with menthol cigarettes compared to non-menthol cigarettes, nor does it support that menthol cigarettes adversely affect initiation, dependence or cessation,” Mr. Wheaton said in a statement. “As a result, we do not believe the published science supports regulating menthol cigarettes differently from non-menthol cigarettes.”
Public health experts say menthol cigarettes have been heavily marketed to Black people, to devastating effect: African American men have the highest rates of lung cancer in America, according to the Centers for Disease Control and Prevention.
The president of the N.A.A.C.P., Derrick Johnson, called the ban a “win for justice.”
“These products have killed our children, our parents, our brothers, sisters and livelihoods,” Mr. Johnson said in a statement. “After fighting against deadly menthol products for decades, today is a victory for Black America.”
Smoking rates overall have been falling for 20 years, although a small uptick was reported in 2020, attributed to the pandemic. Still, cigarettes are estimated to cause 480,000 deaths each year, and among those starting the habit, menthol is popular, with about half of teenage smokers reporting that they use them.
Taking menthol cigarettes off the market is expected to further reduce smoking levels. If the United States’ experience mirrors that of Canada after it banned menthol cigarettes, 1.3 million people would quit smoking and potentially hundreds of thousands of premature deaths could be averted, said Geoffrey Fong, principal investigator of the International Tobacco Control Policy Evaluation Project.
“This is potentially an extraordinary, landmark intervention to reduce the No. 1 preventable cause of death and disease,” Mr. Fong said.
The ban does not cover menthol e-cigarettes. The F.D.A. is currently reviewing all vaping products being sold in the United States to determine whether to allow them to stay on the market. (Sales of these products began before the F.D.A. had regulatory authority over them.) The agency has so far granted marketing approval to makers of some tobacco-flavored vapes. Some menthol products remain on the market as the agency mulls how to rule on some of the top-selling devices.
The blueprint for the ban will be published as a proposed regulation in the May 4 Federal Register, and will be open for public comments for at least 60 days after that, then finalized with possible revisions. The F.D.A. said it would also convene listening sessions to engage with the public on the proposal in June.
It is expected that it will take a least a year to go into effect. The tobacco companies are likely to contest the rule in court, which could result in a long legal battle and more delay. A spokesman for Altria, which owns Philip Morris USA, which sells about 9 percent of the U.S. menthol cigarettes, warned that banning menthol would push the products into illegal, underground markets with no oversight and unfortunate health consequences.
“Taking these products out of the legal marketplace will push them into unregulated, criminal markets that don’t follow any regulations and ignore minimum age laws,” the spokesman, David Sutton, said in a statement. “We will continue to engage in this long-term regulatory process.”
Erika Sward, advocacy assistant vice president for the American Lung Association, reviewed the draft rules, which also ban flavored, small cigars, and said they appeared strong. That the F.D.A. “fended off inevitable attempts to weaken these proposed rules is quite remarkable,” she said.
Public health advocates have long sought a menthol ban. When the landmark Tobacco Control Act passed in 2009, giving the F.D.A. the authority to regulate tobacco products, menthol was exempted from the tobacco flavors that would be banned.
The exception rankled public health groups and a cadre of former U.S. cabinet health secretaries, who noted the 47,000 Black lives lost each year to smoking-related disease. Allowing menthol cigarettes to remain on the market “caves to the financial interests of tobacco companies and discriminates against African Americans,” the health secretaries wrote in a letter to the Senate, when the tobacco control law was moving through Congress.
The law left the matter in the hands of the F.D.A. and its advisers, who took incremental steps forward. Agency advisers in 2011 said removing menthol cigarettes from the marketplace would benefit public health, but stopped short of calling for a ban. Two years later, the F.D.A. said menthol made it easier to start smoking and harder to quit, seeking comment on “potential regulation.”
A half decade passed before Dr. Scott Gottlieb, the F.D.A. commissioner at the time, announced his intent to seek a menthol cigarette ban in 2018. He left the agency before achieving that goal. Last year, the agency said it would pursue the ban again, as well as eliminating flavors in the small, mass-produced cigars that are popular with Black and Latino teenagers.
White House records show recent meetings with supporters of a ban, including the American Heart Association and American Academy of Pediatrics. The Public Law Health Center and others left officials with a review of Canada’s experience with banning menthol cigarettes in 2017, which led to 59 percent of menthol smokers picking up unflavored cigarettes, 20 percent of the menthol smokers quitting and nearly the same proportion continuing to buy them on Native reservations, where they can still be sold.
Business groups including Americans for Tax Reform and the Tax Foundation warned White House officials of losing federal and state tax dollars — as much as $6.6 billion in the first year of a menthol cigarette ban.
Though supporters of the ban say it is an important step toward reducing disease inequities in the United States, the step has, to some degree, divided Black communities. The Rev. Al Sharpton has sharply criticized it, and recently secured a meeting with White House officials along with King & Spalding, a lobbying firm with an extensive record of advocating for RAI Services Company, the cigarette maker formerly known as R.J. Reynolds.
Mr. Sharpton, president of the National Action Network, wrote a letter to Susan Rice, the Domestic Policy Council director, saying the ban would lead Black smokers to tamper with cigarettes or use unregulated herbal menthol varieties, which would “promote criminal activity.” Mr. Sharpton has acknowledged that Reynolds has supported his organization for two decades but would not say how much it contributed.
Reynolds is one of the world’s largest cigarette companies and maker of Newport menthol cigarettes, which it calls “America’s No. 1-selling menthol cigarette brand.”
Reynolds raised similar concerns in a letter to White House officials, suggesting the F.D.A. extend the timeline on a ban to ensure local enforcement does not roll out “in a way that creates negative effects, such as disparate impacts on communities of color.”
“A menthol ban would impose serious risks,” Mr. Sharpton wrote, “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.”
Carol McGruder, co-founder of the African American Tobacco Control Leadership Council, said it’s “shameful” that Mr. Sharpton and others take tobacco funding. She said that the need for police reform is real but that the lives taken early by menthol tobacco are far greater in number.
“To cynically use our pain, to say, ‘Oh, we want to protect you from that by leaving these products on the market that are killing you’ is crazy,” Ms. McGruder said.
In an interview, Mr. Sharpton said his position is not financially motivated but borne out of deep concern about how the ban will be enforced in Black neighborhoods by local police. “You can’t pay me to take a position,” he said.
The F.D.A. made it clear in its announcement that it “cannot and will not enforce against individual consumers for possession or use of menthol cigarettes or flavored cigars.”
Christina Jewett – New York Times – 2022-04-28.
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