The Menthols Ban: Delayed, Divisive and Far From Dead

May 16, 2024

The planned national ban on menthol cigarettes in the United States was postponed indefinitely in late April.

The idea has been considered by regulators for years. It was unsuccessfully proposed by then-FDA Commissioner Scott Gottlieb under the Trump administration in 2018. Under the Biden administration, the plan was first announced by the FDA in 2021, but has repeatedly been pushed back since.

Many observers attribute the Biden administration’s latest postponement to political motives in an election year. They ask how Black voters, a core Democratic constituency, would respond to a ban, when Black people who smoke overwhelmingly smoke menthols.

The announcement of the delay has sparked contrasting reactionsfrom dismay among anti-smoking advocates who say the ban would save lives, to relief among advocates who say consequences of prohibition would include a transition to illicit sales and more law enforcement targeting of Black communities.

“It’s a matter of when, not if.”

But as far as the FDA is concerned, it is only a delaynot an abandonment. Dr. Brian King, director of the agency’s Center for Tobacco Products, emphasized this in remarks to the E-Cigarette Summit in Washington, DC, on May 14.

These policies (the proposal would also ban flavored cigars) “remain a priority for the FDA,” King said, and his agency is “committed to seeing this through.”

“It’s a matter of when, not if” the proposed rules “see the light of day,” he added.

In announcing the postponement, the White House noted feedback from civil rights groups and others opposed to the ban. Organizations that oppose it or have expressed deep concerns include the ACLU, the Drug Policy Alliance (DPA), the Law Enforcement Action Partnership (LEAP), the National Black Justice Collective and Students for Sensible Drug Policy, among many others.

“It is clear that there are still more conversations to have, and that will take significantly more time,” stated Health and Human Services Secretary Xavier Becerra on April 26.

Becerra, known as a supporter of the ban, naturally made no mention of the upcoming presidential election, but advisers have reportedly warned the administration of electoral consequences.

“In theory, regulations and rules are based in science, but everything in Washington, DC, revolves around politics,” tobacco harm reduction advocate Gregory Conley, director of legislative and external affairs for American Vapor Manufacturers, told Filter.

With polling consistently showing a tight November 2024 presidential race, the Biden administration is by all accounts concerned about holding together the coalition of voters that tend to drive Democratic victories,” he added. “Top among this list is African Americans.”

“Pro-ban activists have always had polling data showing that most African American voters support menthol prohibition,” Conley said. But he also suggested that people who personally face losing legal access to their preferred cigarettes, or those close to them, would be more likely to change or withhold their votes over this decision than people who are not directly impacted.

“Such policy is not a public health approach, and dangerous to the very communities the ban is meant to protect.”

Art Way is a drug policy consultant who has written for Filter about how nicotine and tobacco prohibitions, like those of other drugs, harm marginalized communities through the growth of unregulated markets and increased police interactions.

“A blanket ban on already-popular products that thrive in gray/illicit markets is symbolic,” Way told Filter. “Such policy is not a public health approach, and dangerous to the very communities the ban is meant to protect.”

Diane Goldstein, executive director of LEAP, also welcomes the Biden administration’s second thoughts. She has written for Filter that Black and Latinx communities would bear the brunt of enforcement stemming from the policy.

“This ban, while seemingly race-neutral, would have targeted Black smokers, for whom menthol products make up over 80 percent of sales, while leaving the tobacco products favored by white smokers completely legal,” Goldstein told Filter.

“The menthol ban is just another extension of the War on Drugs, which has sent incarceration soaring, saddled millions with arrest records that make it difficult for them to find jobs and stabilize their lives, and decimated police-community relations,” she continued. “We should be doing all we can to end these sorts of laws rather than expand them.”

The Campaign for Tobacco-Free Kids, which seeks to restrict access to tobacco harm reduction products in the name of preventing youth vaping, is among many proponents of the ban.

“There is absolutely no reason to further delay a policy that has been studied for more than 12 years, is supported by overwhelming scientific evidence, and will save hundreds of thousands of lives,” said Yolonda C. Richardson, its president and CEO, and Derrick Johnson, president and CEO of the NAACP, in a joint statement in April, before the postponement was confirmed. “Make no mistake: Delays cost lives, especially Black lives.”

“Our work showed finalizing the ban could save 650,000 deaths by 2060 through greater smoking cessation.”

But the issue also divides the tobacco harm reduction community. For example, Global Action to End Smoking (previously the Foundation for a Smoke-Free World, it relaunched on May 13), supports both access to safer nicotine products for adults who smoke and a menthols ban.

The organization released a May 1 statement from CEO Cliff Douglas, describing the Biden administration’s postponement as “a setback for public health.”

“In the proposed ban, the [FDA] cited modeling it funded from me and other national tobacco control experts,” the statement read. “Our work showed finalizing the ban could save 650,000 deaths by 2060 through greater smoking cessation.” Referencing death and disease among Black people who smoke menthols, it called the ban “an imperative step for social justice and health equity.”

“This delay is atrocious,” said Dr. David Margolius, director of public health in Cleveland, Ohio. “The longer that we wait, the harder it’s going to be to end the sale of menthol cigarettes. Any delay will result in more people dying in this country.”

Menthol is the only cigarette flavor that hasn’t already been banned in the US. Ban proponents say it is particularly insidious as it conceals the harshness of smoking cigarettes, making them easier to smoke and harder to quit. Other experts, such as Dr. Ray Niaura, a tobacco researcher and professor at New York University’s School of Global Health, have noted research indicating that menthols are not more harmful or addictive than other cigarettes.

Ban proponents emphasize not only the historical role of tobacco companies in marketing menthols to Black communities, but tobacco company funding for some organizations and individuals that oppose the ban. Most opponents of the ban do not receive such funding, however.

“Decades of evidence show that drug prohibition doesn’t work. We urge the Biden administration to implement a harm reduction approach to tobacco use.”

“From the start, we warned that such a ban would drive people to the illicit market, putting people’s health at risk, and would lead to more negative interactions between communities of color and police, putting people’s lives at risk,” Martiza Perez Medina, director of the office of federal affairs for the Drug Policy Alliance, told Filter.

Rev. Al Sharpton is among other civil rights and social justice advocates to have spoken out about harmful repercussions of a ban for Black communities.

“Decades of evidence show that drug prohibition doesn’t work,” Perez Medina added. “We urge the Biden administration to implement a harm reduction approach to tobacco use.”

This is another area where the administration and FDA have received heavy criticism. Under its onerous PMTA (premarket tobacco product application) process for vapes, the FDA has rejected millions of applications, while authorizing just 23 tobacco-flavored vaping products—all now manufactured by tobacco companies—as “appropriate for the protection of public health.”

Most adults who switch from cigarettes to vapes prefer non-tobacco flavors, and some find these critical to switching. While many prefer not to revisit the taste of the cigarettes they left behind, it would seem logical that some people seeking to quit menthol cigarettes would find menthol vapes helpful. 

Global Action to End Smoking called for the FDA to authorize menthol vapes in its May 1 statement, saying that “the effectiveness of a menthol cigarette ban would be amplified significantly by the availability of less harmful mentholated nicotine products.”

Filter previously reported that in 2022, Brian King’s office at the FDA’s Center for Tobacco Products intervened to overrule CTP scientists’ recommendation to authorize some menthol vaping products.

On May 14, Dr. King insisted: “We do not have a de facto ban on flavored e-cigarettes … You can say it until you’re blue in the face.” 

Harm reduction advocates have been saying itand also some judges.

With experiences from state-level menthol cigarette bans in California and Massachusetts indicating illicit markets, increased enforcement and mixed impacts on smoking, both supporters and opponents of a national ban point to different evidence and cite the imperative for racial justice.  

We have no timeline from the Biden Administration or the FDA on when the ban might be formally raised again, and the November election adds another layer of uncertainty. But this issue, and the divisions around it, will not be going away.

 


 

Photograph (cropped) by Wikimedia Commons/Creative Commons 2.0

The Influence Foundation, which operates Filter, has received grants from Global Action to End Smoking, from Reynolds American, Inc. and Altria (two companies which oppose the menthols ban), and (previously) from DPA. Art Way’s consulting clients have included Reynolds. Diane Goldstein is a member of the board of directors of The Influence Foundation, and LEAP was formerly The Influence Foundation’s fiscal sponsor. Filter’s Editorial Independence Policy applies. 

Kiran Sidhu

Kiran is a tobacco harm reduction fellow for Filter. She is a writer and journalist who has written for publications including the Guardian, the Telegraph, I Paper and the Times, among many others. Her book, I Can Hear the Cuckoo, was published by Gaia in 2023. She lives in Wales. Kiran's fellowship is supported by an independently administered tobacco harm reduction scholarship from Knowledge-Action-Change—an organization that has separately provided restricted grants and donations to Filter.

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