Menthol Cigarette Ban Expected

A nationwide prohibition on the flavored products would take years to implement.

April 29, 2021

Cigarette Pack

WASHINGTON—As many Beltway insiders have predicted, the Biden Administration is expected to propose a ban on menthol cigarettes, according to a report in the New York Times.

The White House proposal also may include a ban on all mass-produced flavored cigars, including cigarillos, but would not apply to e-cigarettes. The proposed ban would not require congressional approval, but the U.S. Food and Drug Administration (FDA) would need to submit proposed rules and seek public comment. Any ban is unlikely to take effect soon because the issue is likely to end up in a protracted court battle.

Under a federal district judge order in Northern California, the FDA must respond today to a citizens’ petition to ban menthols by indicating whether the agency plans to pursue a ban.

A similar prohibition on menthol was proposed three years ago by then-FDA commissioner Dr. Scott Gottlieb, but the Trump Administration backed down after intense resistance from tobacco state lawmakers and tobacco companies.

Pressure to revive the proposed ban has been building since President Biden’s election and as the coronavirus pandemic and the Black Lives Matter movement exposed sharp racial disparities in the country’s public health and medical systems.

Today, about 85% of Black smokers in the U.S. and 47% of Hispanic smokes use menthol brands, compared with 30% of white smokers, according to the National Survey on Drug Use and Health data. While Black Americans smoke less, they die of heart attacks, strokes and other causes linked to tobacco use at higher rates than white smokers do, according to federal health statistics.

The National Newspaper Publishers Association (NNPA), which represents more than 200 African-American-owned community newspapers, has joined with leading Black and Hispanic law enforcement executives to urge the FDA to see the warning signs of a racially discriminatory policy, the organization said in a news release.

"There is no factual basis to assert that a menthol cigarette ban will stop people of color from smoking," said Dr. Benjamin Chavis, president and CEO of NNPA. "In fact, the unintended consequences of such a racially discriminatory ban will set the stage for more negative and more likely counterproductive interactions between law enforcement and people of color."

Proponents of the menthol ban believe that by including prohibitive language in the legislation, law enforcement officials will not utilize a menthol ban to interact with smokers of any race. But the NNPA insists that a menthol ban would give police pretext to approach a smoker to find out where cigarettes were purchased. The organizations have requested that the FDA to exhaust all options before removing menthol cigarettes from legal, regulated channels.

Meanwhile, the proposed ban has the support of groups fighting tobacco use among teens.

“Menthol cigarettes are the No. 1 cause of youth smoking in the United States,” said Matthew L. Myers, president of Campaign for Tobacco-Free Kids. “Eliminating menthol cigarettes and flavored cigars used by so many kids will do more in the long run to reduce tobacco-related disease than any action the federal government has ever taken.”

Support has also been growing in Congress to enact a ban through legislation. Several states and municipalities, including Massachusetts and California, have instituted their own menthol bans, and many of those are tied up in litigation.

To learn more about efforts to ban flavors for tobacco products, read “The Flavor Ban Boom” in NACS Magazine.

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