Tobacco Companies Speak Out Against FDA Menthol Ban

“Harm reduction, not prohibition, is the better path forward.”

April 29, 2022

Pack of Menthol Cigarettes Opened

ALEXANDRIA, Va.—Yesterday, the Food and Drug Administration (FDA) took steps to ban menthol cigarettes and all flavored cigars, which would remove more than a third of all cigarettes sold in the U.S., reports the Wall Street Journal. The products represent $20 billion in annual sales.

The ban wouldn’t happen for another two years, as the FDA will allow the public to comment on the proposed rules, and then it has to review the comments. (NACS plans to file public comments on behalf of the industry.) The earliest that final rules would be filed is 2023, and then the ban would take effect in 2024.

FDA Commissioner Robert Califf told reporters yesterday that this move could save “hundreds of thousands of lives,” and that “we know the majority of smokers want to quit,” and banning menthol in cigarettes is “a better shot.”

Banning menthol cigarettes and flavored cigar products outright, however, risks creating problems that the FDA isn’t taking into account.

“We believe harm reduction, not prohibition, is the better path forward. Taking these products out of the legal marketplace will push them into unregulated, criminal markets that don’t follow any regulations and ignore minimum age laws. We will continue to engage in this long-term regulatory process,” said Altria Group in a statement.

NACS agreed that the ban could create an illicit “black market” for the products.

“History has proven that prohibition of a legal product that has an established user base doesn’t work and has negative consequences for our communities,” stated Anna Blom, NACS director of government relations. “Unfortunately, many current users of these products will seek out illicit sources who don’t check IDs and who sell counterfeit products smuggled into the country.”

Reynolds American, which was acquired by British American Tobacco in 2017, makes Newport, the leading menthol-cigarette brand in the U.S.

“We strongly believe that there are more effective routes to deliver Tobacco Harm Reduction than banning menthol in cigarettes. Evidence from other markets, including Canada and the EU where similar bans have been imposed, demonstrates little impact on overall cigarette consumption,” said Kingsley Wheaton, chief marketing officer, BAT. “Our corporate purpose is clear: to build A Better Tomorrow by reducing the health impact of our business. We are transforming BAT and are committed to Tobacco Harm Reduction. We believe our portfolio of scientifically substantiated reduced-risk products can play a critical role in its delivery. We will continue to work with FDA to support access and choice for adult consumers.”

Swisher, which makes the well-known Swisher Sweets Cigars, released a statement saying that the Florida-based company “plans to vehemently oppose this measure with meaningful scientific and economic data, and encourages adult consumers, employees, retailers, and other stakeholders to make their views known to FDA and other policymakers.”

Swisher noted that the FDA’s proposal regarding characterizing flavors in cigars needs to go through a lengthy comment period and approval process. “Given this, Swisher will continue business as usual.  Our entire portfolio remains available for us to market and sell to our adult consumers.”

The company says there is a lack of scientific evidence to support the FDA’s proposed product standard for flavored cigars, and more study is needed.

“The evidence that does exist shows moderate consumption by a small cohort of adults and historically low youth usage. Based on the government’s own studies, youth usage of cigars has been declining for years and is at an all-time low,” Swisher noted.

“The overall public health community has increasingly supported a posture of allowing citizens to make their own informed health decisions. This FDA action, however, does the opposite. It restricts consumer choice and removes adult products from the market without scientific basis for doing so.”

The FDA in its statement released yesterday noted that the agency “cannot and will not enforce against individual consumers for possession or use of menthol cigarettes or flavored cigars. If these proposed rules are finalized and implemented, FDA enforcement will only address manufacturers, distributors, wholesalers, importers and retailers who manufacture, distribute, or sell such products within the U.S. that are not in compliance with applicable requirements. These proposed regulations do not include a prohibition on individual consumer possession or use.”

The comment period opens May 4. The agency will convene public listening sessions on June 13 and 15 on the proposals.