FDA Commits to Proposal to Ban Menthol Cigarettes

WASHINGTON — The Food and Drug Administration announced they are working toward issuing proposed product standards within the next year to ban menthol as a characterizing flavor in cigarettes and all characterizing flavors in cigars. 

Menthol flavoring has been known to have a cooling effect that allows for deeper nicotine intake and toxins that make it more addictive.

Each year, approximately 45,000 Black Americans die as a result of smoking, and research shows that out of all Black smokers nearly 85% smoke menthol cigarettes, compared to 30% of White smokers. 

“It’s no accident that nearly nine in ten Black smokers use menthol cigarettes, which are easier to smoke and harder to quit,” said Avenel Joseph, vice president of Policy at the Robert Wood Johnson Foundation.

The Tobacco Control Act of 2009, signed by President Barack Obama, removed all flavors from combustible cigarettes, except for menthol. The act gave sweeping authority to the FDA to regulate tobacco products, review products before introduction to the market, prevent illicit trade, strengthen warning labels, and restrict tobacco product marketing and advertising. 

The act also required the FDA to make broader research efforts to understand the differences between menthol and non-menthol cigarettes, and the impact on population health. 

“Major tobacco companies targeted African American communities. They had urban programs, and co-opted Black leadership groups, infiltrated our media, and magazines we love and respected, like Ebony and Jet, which were just full of Newport ads. They also had free giveaways to children,” said Carol McGruder, founding member and co-chair of the African American Tobacco Control Leadership Council. 

This was the case for well-known comedian Dave Chappell, who was given free menthol cigarettes at the age of 14 in a metro station in Washington, D.C., and who made public comments that it was this event which began his life as an addicted smoker.

Based on findings from the U.S. Department of Health and Human Services, evidence shows that the tobacco industry attempted to maintain a positive image among African Americans, including supporting cultural events, making contributions to minority higher education institutions, elected officials, civic and community organizations, and scholarship programs. 

“The practices of the industry were to distribute these products in our community to our black children, and we’re living the legacy of that every day,” said McGruder. 

Local municipalities began to take action and in 2013 the Mayor of Chicago, Rahm Emanuel, created the first menthol cigarette “buffer zone,” a 500-foot radius where these products could not be sold. 

The tobacco industry sued, but the city won the case, opening the door for local municipalities and states to enforce mandates against menthol tobacco products.

In another 2013 effort, 18 organizations including the Public Health Law Center put forth a citizen petition to the FDA to take action against menthol tobacco products. 

“We filed a citizen petition in 2013, along with 18 other organizations, and we have continued to push the FDA to act, but until April 29, there wasn’t a meaningful response to the citizen petition or to all of our efforts,” said Joelle Lester, director of Commercial Tobacco Control Programs, Public Health Law Center, Mitchell Hamline School of Law.

In August 2020, California tried to implement a statewide ban on all menthol tobacco products through Senate Bill 793. However, three days after the bill was approved the tobacco industry submitted a proposed ballot referendum to the attorney general of California. 

On January 22, 2021, the referendum qualified for the ballot and put the bill on hold until the general elections in November 2022 allowing California’s voters to decide the fate of the statewide ban. 

Dr. Phillip Gardiner, the founding member of the African American Tobacco Control Leadership Council, said that in California, tobacco industries collected signatures to block the implementation of SB 793. 

“​​They paid for people to collect signatures, and a lot of this was done through certain Black churches and ministers,” said Gardiner. 

In August 2020, around 200 people marched in front of the home of California Assembly Speaker Anthony Rendon, including faith leaders and other activists, to protest SB 793 based on the unintended consequences and over-policing and enforcement in communities of color.

The tobacco industry started campaigns to send the message to African American communities that taking these tobacco products offline would increase the illicit market of the sale of menthol products, and thus increase officer-involved interactions with Black people. 

“The industry has used racialized targeting of African Americans, and now they are flipping it to say that taking these products offline is racist,” said McGruder.

The annual revenue from tobacco in the US was $220 billion dollars, with 36% of that total towards menthol products in 2018, and Gardiner said he is skeptical of how this will impact the decision-making of the FDA.

A proposal on menthol cigarettes may not be made until April of next year, and even then he said there could be amendments and lawsuits that might delay the outcome. 

“I think the FDA will be sued by the tobacco industry in 2023, and I don’t think they will come off the shelf,” said Gardiner.

Gardiner and other tobacco control forces are planning a conference in Washington, D.C., for May 2022 to continue the fight for menthol tobacco bans.

They will also be urging Congress to step up efforts to provide for language specific and culturally appropriate smoking cessation services, which the FDA mentions in their statement as some of the work to be done with other agencies to increase cessation services. 

“This [ban] is a long way from happening, but we have to keep up the work at the local and state level to get menthol tobacco products off the market,” said Gardiner.