The announcements have been years in the making: On April 28, the Food and Drug Administration (FDA) announced proposed rules for a ban on menthol cigarettes, after a recent announcement saying it would move forward on a menthol ban, following a previous announcement saying a menthol ban was imminent. Robert Califf, the new FDA commissioner, has now presented the planned ban to a congressional subcommittee. The proposed rule would also prohibit flavors in cigars, including cigarillos.
Explicitly, the proposed law would prohibit “menthol as a characterizing flavor in cigarettes”—meaning that “a cigarette or any of its components or parts (including the tobacco, filter, wrapper, or paper, as applicable) shall not contain, as a constituent (including a smoke constituent) or additive, menthol that is a characterizing flavor of the tobacco product or tobacco smoke.” Nobody would be able to manufacture, distribute, sell or offer for the distribution of sale any such cigarette or its components and parts.
Many civil rights groups oppose the prohibition as a continuation of the War on Drugs, saying it is likely to increase interactions between Black people and the police.
The plan has been embraced by the Biden administration and much of mainstream tobacco control as a means to reduce cancer rates and youth experimentation—and as something of a corrective to the tobacco industry’s marketing of menthol toward Black communities. A large majority of Black smokers smoke menthols.
But many drug policy and civil rights groups—including the Drug Policy Alliance and American Civil Liberties Union (ACLU)—oppose the prohibition as a continuation of the War on Drugs, saying it is likely to increase interactions between Black people and the police.
Like it has in the past, the FDA emphasized in a press release that it would not—and could not—target people who use or possess menthol flavored cigarettes for enforcement. The agency would instead only focus on manufacturers and distributors, it said. The FDA acknowledged that state and local law authorities could not take enforcement action on the agency’s behalf, but said it would seek input on “how it can best make clear the respective roles of the agency and state and local law enforcement, as well as policy considerations related to the potential racial and social justice implications of the proposed product standards.”
Yet advocates note that prohibiting products used in communities that have already borne the brunt of drug-war enforcement will create illicit markets within those communities, leading to further criminalization as lines between consumers and sellers blur.
“One need only review the history of criminal law enforcement with crack cocaine, cannabis, opioids, or other drugs, and alcohol in the 1920s, to know that law enforcement is the wrong tool here, especially when there are other, far more helpful interventions the federal government could be emphasizing,” stated a recent letter to the administration from dozens of human rights and drug policy organizations that oppose the menthol ban. “Any proposal to effectively criminalize the sale and distribution of a product used by 18 million adults, particularly a product preferred by black and brown citizens, must take these issues with the utmost seriousness and undertake genuine efforts to find better policy solutions.”
“Time and time again, we see encounters with police over minor offenses—for Daunte Wright it was expired tags, for George Floyd it was using a counterfeit bill, for Eric Garner it was selling loose cigarettes—result in a killing,” read an ACLU statement in response to the April 28 announcement. “There are serious concerns that the ban implemented by the Biden administration will eventually foster an underground market that is sure to trigger criminal penalties which will disproportionately impact people of color and prioritize criminalization over public health and harm reduction.”
Menthol prohibition is rolling forward, but will not happen quickly: Many forecast it won’t go into effect until 2024.
Menthol prohibition is rolling forward, but will not happen quickly: The FDA now intends to invite public comments on the proposed rules through July 5, 2022, and many forecast the ban won’t go into effect until 2024—perhaps even later if the tobacco industry sues the agency. As the Wall Street Journal reported, the plan “could sweep from the market more than a third of all cigarettes sold in the US,” which represent “more than $20 billion in annual sales.”
The menthol debate has been a contentious one since as early as June 2009, when President Barack Obama signed a law giving the FDA the power to regulate tobacco products. The agency then stripped flavored cigarettes—except menthol—from the market. But the FDA has since faced a court deadline to act on the menthol-ban question, which was triggered from a citizen petition in 2013 signed by advocacy groups like the American Heart Association, the Campaign for Tobacco-Free Kids (CTFK), and the American Lung Association. As part of his comprehensive tobacco control plan, former FDA Commissioner Scott Gottlieb began plans to ban menthol cigarettes in 2017. That eventually stalled, and Gottlieb resigned in 2019.
As with vaping, harm reduction and drug policy reform advocates find themselves in the precarious position of making similar arguments to the tobacco industry—which, cynically or not, has adopted the language of harm reduction and racial justice to support e-cigarettes and the continued sale of menthol combustibles. To some degree, the planned ban has divided both the Black community—the NAACP, for example, supports it as a way to promote health—and the tobacco harm reduction community.
“Prohibition is not the answer. Harm reduction is.”
The ban would not cover menthol e-cigarettes; however, the FDA has yet to authorize a single menthol-flavored vaping product through its premarket tobacco product application (PMTA) process. The agency has also stated that it would consider making some exemptions on a case-by-case basis, which include heat-not-burn devices and cigarettes with very low nicotine levels.
“Prohibition is not the answer,” stated the letter from the anti-ban coalition. “Harm reduction is. Rather than criminalizing this product, FDA and the Administration should be massively investing in community-based health care solutions.”
The Influence Foundation, which operates Filter, previously received a restricted grant from the Drug Policy Alliance to support a Drug War Journalism Diversity Fellowship.