At the end of February, the Food and Drug Administration (FDA) entered two proposed tobacco standards—one for menthol in cigarettes and another for characterizing flavors in cigars—into the Office of Management and Budget (OMB) system. Observers have noted that this usually signals that such rules are in their final stages.
Nearly a week later, on March 3, Dr. Robert Califf, the new commissioner of the FDA, announced on Twitter that the public should expect to see the specifics of a federal menthol cigarette and flavored cigar ban by spring. The agency had indicated last April that it intended to publish the rules “within the next year,” appearing to honor a commitment amid months of pushing deadlines to decide vaping’s future. President Barack Obama first floated menthol prohibition in 2009, and it’s stalled ever since, becoming a contentious debate for more than a decade.
In a series of tweets, Califf noted that the American Heart Association recently “pointed out that tobacco product use is the leading cause of years of life lost in the US,” and said that “specific groups of people have been targeted, leading to disproportionate deaths from tobacco use, especially from flavors that entice them to start and keep smoking.”
“As these proposed rules are advanced through the system, we expect that by spring the public will see the specifics of the proposed product standards and will be able to comment,” Califf wrote. “Such comments to proposed rule dockets are helpful in determining what changes, if any, might be made to produce a final rule.”
Still, just because the rules have been moved into OMB’s system, does not mean things will happen quickly, if at all. Tobacco control experts of every stripe—from anti-nicotine prohibitionists to tobacco harm reduction advocates—largely agree that the process could take years.
Supporting the menthol ban are a collection of organizations that are usually opposed to one another.
“In administrations past, OMB is where regulations go to die,” Matt Myers, the president of the Campaign for Tobacco-Free Kids (CTFK), told Stat. “This administration has made a commitment to move forward on this specific rule, and what OMB does will be a critical test of their commitment.”
As of 2018, 13.7 percent of adults (34.2 million) in the US smoked, according to the Centers for Disease Control and Prevention. And about 18.6 million of those current smokers use menthol cigarettes, according to the FDA, though others estimate the number is closer to 11 million. Of Black Americans who smoke, a large majority smoke menthols.
Supporting the menthol ban are a collection of organizations that are usually opposed to one another, like CTFK and the pro harm-reduction Foundation for a Smoke-Free World, which is funded by grants from Philip Morris International (PMI). They argue that tobacco companies explicitly targeted Black communities with menthols marketing in the past, causing suffering into the present.
On the other side of the issue, another diverse group of harm reductionists and racial justice advocates worries that a menthol ban will increase interactions between Black people and the police, a blatant and legitimate fear. In 2014, a cop arrested and then killed Eric Garner, for example, because he was selling loose cigarettes; Garner’s mother, Gwendolyn Carr, soon became a vocal opponent of a proposed menthol ban in New York City that never materialized.
Those in favor of the ban repeat that only manufacturers and retailers would be targeted, not smokers themselves. But given the history of prohibition, as critics note, smokers will inevitably become those very sellers. It’s not difficult to bootleg menthol cigarettes, for one thing.
“The War on Drugs should make it clear that the consequences of criminalizing substances, particularly those preferred by marginalized groups, are often far more devastating than the substance itself.”
“The desire to address health disparities is laudable,” Michelle Minton, a tobacco harm reduction expert and senior fellow at the Competitive Enterprise Institute (CEI), told Filter. “But, while a ban might seem like an easy fix, our experience with the War on Drugs should make it clear by now that the consequences of criminalizing substances, particularly those preferred by marginalized groups, are often far more devastating than the substance itself. While some smokers might quit in response to a ban, many will switch to non-mentholated cigarettes and many more will simply turn to the already-thriving illicit cigarette market, offering zero health benefit.
“Califf should reject the prohibitionist approach,” she continued, “and instead look toward harm reduction strategies that encourage smokers who cannot or will not quit nicotine to switch to safer alternatives.”
As many tobacco harm reduction proponents have noted, too, the FDA has long promised a “comprehensive” tobacco control agenda, including “a continuum of risk.” If the agency were to ban menthol cigarettes, it should also authorize menthol-flavored e-cigarettes and other safer nicotine alternatives, like pouches, they argue, to give adult smokers an option to switch.
“It’s all a preliminary step in a very long process,” David Sweanor, an industry expert and chair of the advisory board for the Centre for Health Law, Policy and Ethics at the University of Ottawa, told Filter. “One that would take years. It is odd that anti-tobacco groups push for a measure that cannot come into force for years, if ever—but oppose, or are silent, on significant measures that could happen immediately: such as accurately informing people who smoke cigarettes about the relative risks of alternatives.”
The Influence Foundation, which operates Filter, has received grants from both the Foundation for a Smoke-Free World and Philip Morris International. Filter’s Editorial Independence Policy applies.