FDA Appears in Court Over Menthol Ban Lawsuit

Anti-tobacco groups sued the agency for not implementing a planned ban on menthol flavors.

November 19, 2021


ALEXANDRIA, Va.—Attorneys for the U.S. Food and Drug Administration (FDA) appeared in court yesterday as anti-tobacco groups accused the agency of failing to implement a ban on menthol cigarettes.

A 2013 report by the FDA found that menthol cigarettes make it easier to start smoking and harder to quit, so the American Medical Association, African American Tobacco Control Leadership Council and Action on Smoking and Health sued the agency last year, urging it to take action based on the findings of the FDA report.

In April 2021, the FDA proposed a ban on selling menthol cigarettes and cigars by April 2022. In September, the FDA denied marketing applications for flavored electronic nicotine delivery system (ENDS) products submitted by 34 companies, representing about 355,000 products. Last month, the agency authorized the marketing of R.J. Reynolds’ Vuse Solo e-cigarette and three tobacco-flavored e-liquid pods, but said it was "still evaluating" the company's application for menthol-flavored products.

"The FDA has put itself in a position of having sort of a tension between its action on menthol cigarettes and other kinds of flavored tobacco products—most specifically e-cigarettes," Joelle Lester, director of commercial tobacco control programs at the Public Health Law Center in St. Paul, Minnesota, told Politico.

The FDA said that it’s developing a menthol policy and plans to complete its review of remaining e-cigarettes.

"Our commitment to ban menthol as a characterizing flavor in cigarettes and ban all characterizing flavors in cigars is at the top of [the Biden] administration's tobacco regulatory priorities," an FDA spokesperson said.

According to the NACS State of the Industry Report of 2020 Data, cigarettes are a declining category but continue to be a top sales and profit generator for convenience stores, increasing 3.6% in sales year over year in 2020. The other tobacco products category, meanwhile, grew 4.5% in 2020. Read more about cigarette sales in 2020, and specifically how fourth-tier cigarettes and cigars benefited from pandemic shifts, while e-cigarettes shed their appeal in “Igniting Sales” in the June 2021 issue of NACS Magazine.