With Proposed Menthol Cigarette Rule, FDA Says Cool It

The 2020s have already reprised some of last century’s amusing trends—Britney Spears, low-rise jeans, flip phones. But the return of one 20th century habit has health experts troubled. In 2020, cigarette sales increased for the first time in 20 years, and young people have started smoking more in the wake of the pandemic.

Recently, the U.S. Food and Drug Administration (FDA) took a step to stem the tide. On April 28, FDA issued a proposed rule banning menthol flavoring in cigarettes, eliminating the additive that produces a cooling sensation for smokers. In doing so, FDA expects to save as many as 650,000 lives. But the rule has also sparked racial equity concerns.

The proposed rule applies to both cigarettes and their component parts. FDA’s enforcement of the rule would extend only to manufacturers, distributors, wholesalers, importers, and retailers—not to individual smokers.

Pressure for a menthol ban goes back over a decade. When the U.S. Congress passed the Family Smoking and Tobacco Control Act in 2009, it established the Tobacco Products Scientific Advisory Committee and called for the Committee to issue a report on the impact of menthol cigarettes on public health. Two years later, the Committee submitted its report and indicated that removing menthol cigarettes from the marketplace would benefit public health.

In 2013, a public health organization, the Tobacco Control Legal Consortium, filed a petition asking FDA to ban menthol additives in cigarettes. Seven years later, with FDA having taken no action, two other organizations sued FDA in federal court, alleging that FDA’s delay in issuing a proposed rule was unreasonable and unlawful under the Administrative Procedure Act. The court ruled that FDA needed to take action and determine whether menthol should be added to the existing cigarette flavor ban.

Proponents argue that the menthol ban is an important public health measure because it could save hundreds of thousands of lives. FDA studies indicate that a menthol ban would, in 40 years, result in a 15 percent reduction in smoking and 324,000 to 654,000 fewer deaths attributable to smoking.

Supporters of the menthol ban also argue that the proposed rule would discourage children and young adults from smoking. The Centers for Disease Control and Prevention (CDC) found that 54 percent of people ages 12 to 17 who smoke cigarettes smoke menthols, and the majority of smokers who started smoking as young adults first smoked menthols.

Members of the African American community have taken a particular interest in the proposed rule because, according to CDC data, African Americans smoke menthols at a far higher rate than other groups. Cigarette manufacturers have targeted advertisements to African Americans for decades, especially their advertisements for menthols. The results of this targeting bear out in current data: Today, almost 85 percent of African American smokers smoke menthols, compared with just 30 percent of white smokers.

Some civil rights leaders see the proposed FDA ban as a crucial measure to ensure that African Americans’ health is protected. Derrick Johnson, president and CEO of the National Association for the Advancement of Colored People, wrote an open letter supporting the menthol ban, stating that failure to ban menthol would “counter the goal and function of FDA to protect and promote public health for all, including the African American community.”

Other civil rights leaders and members of the African American community, however, oppose the menthol ban. They argue that because African Americans use menthols at a far higher rate than the rest of the population, banning menthols will give police a reason to harass and incarcerate an already overpoliced group. In a recent interview, Reverend Al Sharpton said he is hesitant to support the proposed rule until the Biden Administration can ensure that banning menthols will not lead to criminalization on the individual level.

Some are worried not just about criminalization at the individual level, but criminalization of the cigarette market as a whole—and the unintended consequences of such criminalization. Over two dozen policy groups, including the American Civil Liberties Union, wrote an open letter last year to FDA arguing that the menthol ban will result in criminalization of the cigarette market, which will disproportionately harm people of color. The groups also expressed concern that, as a result of the menthol ban, underground cigarette markets will start to spring up.

These policy groups are not alone in their concerns: U.S. Representative Sanford Bishop (D-Ga.), a member of the Congressional Black Caucus, also worries that the ban will lead to an illegal underground market for menthols. Cigarette companies have flouted FDA bans before. After FDA banned flavored e-cigarette cartridges in January 2020, some e-cigarette companies circumvented the ban by selling flavored synthetic nicotine products.

FDA published the proposed rule in the Federal Register on May 4, and interested members of the public can submit comments until July 5. Comments from concerned individuals will help FDA decide how best to ice out menthol cigarettes—or that the entire idea of a ban is uncool.