On April 29, the Food and Drug Administration (FDA) announced a national ban on menthol cigarettes. The agency also called to “ban all characterizing flavors,” including menthol, in cigars.
“Banning menthol—the last allowable flavor—in cigarettes and banning all flavors in cigars will help save lives, particularly among those disproportionately affected by these deadly products,” Janet Woodcock, the FDA’s acting commissioner, said in a statement.
“With these actions, the FDA will help significantly reduce youth initiation, increase the chances of smoking cessation among current smokers, and address health disparities experienced by communities of color, low-income populations, and LGBTQ+ individuals, all of whom are far more likely to use these tobacco products.”
On a morning press call, Woodcock and Mitch Zeller, the director of the FDA’s Center for Tobacco Products, fielded questions from reporters—many of them dealing with the bureaucratic slog of enacting such a policy. But when asked about better informing the public about lower-risk alternatives, like e-cigarettes, Woodcock went so far as to say that was “part of the overall plan on harm reduction.”
“We need to make sure the public understands the different factors, and we need to learn more about the alternatives,” Woodcock added.
It will probably be years before a menthol ban becomes law, after an inevitable avalanche of lawsuits from the tobacco industry. The FDA faced a court deadline to act on the menthol-ban question, which stemmed from a 2013 citizen petition signed by public health organizations and advocacy groups like the Campaign for Tobacco-Free Kids (CTFK), the American Heart Association, and the American Lung Association. And as the Washington Post reported when breaking the news of the FDA decision, the COVID pandemic has brought renewed focus on health disparities.
Menthol has been a contentious debate since as early as June 2009, when President Barack Obama signed the Family Smoking Prevention and Tobacco Control Act. The federal statute gave the FDA the power to regulate tobacco products. Later that year, in September, the agency stripped flavored cigarettes—except menthol—from the market. Nearly a decade later, in 2017, then-FDA commissioner Scott Gottlieb began plans to prohibit menthol combustibles, but the proposal stalled. Gottlieb resigned in March 2019.
According to the Centers for Disease Control and Prevention (CDC), as of 2018, 13.7 percent of adults (34.2 million) in the US smoked. About 18.6 million current smokers use menthol cigarettes, according to the FDA press release, though some ballpark it closer to 11 million. Either way, the majority of Black Americans who smoke, smoke menthols.
It’s one of the rare arenas in tobacco control that has been widely presented as a social justice issue. Yet civil rights activists and public health experts are divided on the subject. In some cases, organizations that are otherwise foes have found unlikely agreement.
The pro-ban side, for example, includes both the nicotine prohibitionists, like the Bloomberg-funded CTFK, and the pro-harm reduction Foundation for a Smoke-Free World (FSFW), which is funded by grants from Philip Morris International. Their arguments are that Big Tobacco explicitly targeted Black communities to market menthols in the past, and that these communities have been paying the price ever since. The ban would, in their eyes, be correcting a wrong.
“The Foundation for a Smoke-Free World applauds the FDA’s proposal to ban menthol cigarettes and flavored cigars,” FSFW said in a statement. “This move will save lives and help reduce health disparities caused by these products, which are disproportionately used by Black Americans.”
CTFK and the Foundation diverge, of course, when it comes to lower-risk alternatives: The former fights for flavored e-cigarette and menthol bans all over the country, where the latter advocates for risk-reduced products like vapes and heat-not-burn devices to be readily available.
“Mounting research indicates that e-cigarettes can help smokers quit,” Derek Yach, the president of the FSFW, wrote in Morning Consult. “And, for menthol users, the efficacy of this strategy may be enhanced by flavors that satisfy users’ menthol cravings without all the risk that comes with combustible cigarettes.”
On the opposite side of the issue, a diverse coalition fears that a menthol ban will increase interactions between Black people and the police. These concerns are obvious and legitimate: A cop arrested and then killed Eric Garner for selling loose cigarettes, for example; Garner’s mother became a vocal opponent of a proposed menthol ban that eventually failed in New York City.
Those in favor of the ban insist this logic is a red herring, as only manufacturers and retailers would be targeted. But should the sale of menthol cigarettes be criminalized, critics insist, smokers will almost definitely become the sellers, as we have seen countless times throughout the history of prohibition. Plus, menthol cigarettes are not difficult to bootleg.
In a letter sent to Xavier Becerra, the secretary of health and human services, a coalition of drug policy and justice reform groups, including the American Civil Liberties Union (ACLU), the Drug Policy Alliance (DPA) and the National Association of Black Law Enforcement Officers, wrote that “such a ban will trigger criminal penalties, which will disproportionately impact people of color, as well as prioritize criminalization over public health and harm reduction.”
“Decades of the drug war teaches us that bans and prohibition-style policies are not only ineffective at promoting public health, but it worsens public health outcomes—especially for the most vulnerable,” Queen Adesuyi, a policy manager at DPA’s Office of National Affairs, told Filter.
“Nearly 80 percent of Black people who smoke cigarettes, smoke menthols—compared to 25 percent of whites,” Adesuyi continued. “A federal ban on menthol cigarettes and the collateral consequences to product safety and enforcement that will follow will undoubtedly impact Black smokers and communities disproportionately.”
There’s something of a case study. In May 2020, the European Union banned menthol combustibles, though harm reduction there has generally been embraced. The youth vape “epidemic” that has dominated the conversation in the United States has not quite made its way overseas, and much of Europe does not demonize less-harmful options, such as vapes or heated tobacco products (HTPs). According to a survey conducted by FSFW, which polled 6,000 menthol smokers before and after the EU ban, only about “8 percent of respondents indicated that they quit smoking completely”—lower than the 12 percent who said they wanted to quit prior to the ban.
“It’s a very distorted view of social justice,” David Sweanor, a tobacco control expert and adjunct professor of law at the University of Ottawa, told Filter of the pro-menthol ban argument. “It’s saying the way to help disadvantaged groups is through coercion.”
“What have we learned historically on drug laws?” he continued. “It makes sense to at least talk about non-coercive alternatives.”
Photograph by North Carolina Department of Public Safety via Flickr/Creative Commons 2.0
The Influence Foundation, which operates Filter, has received restricted and unrestricted grants from the Foundation for a Smoke-Free World, unrestricted grants from Philip Morris International, and a restricted grant from the Drug Policy Alliance. Filter’s Editorial Independence Policy applies.