The Biden administration is taking aim at the tobacco industry

The current administration under President Biden is setting its sights on the tobacco industry with a proposed rule that could lead to the prohibition of menthol cigarettes and flavored cigars.

Recently, the Food and Drug Administration (FDA) advanced this rule to the White House for final review, marking the last stage in the regulatory process before its implementation.

This move towards banning menthol cigarettes, a process over ten years in the making, is set to become one of the FDA’s most significant actions since it started overseeing tobacco in 2009. Health authorities and anti-tobacco campaigners believe such a measure could potentially save hundreds of thousands of lives, with a notable impact on Black smokers.

Advocates from public health and civil rights sectors have consistently highlighted the disproportionate impact of menthol cigarettes on Black Americans, pointing out the tobacco industry’s long-standing and deliberate marketing focus on Black communities.

Data from the FDA indicates that about 85 percent of Black smokers choose menthol cigarettes, in contrast to 30 percent of white smokers. It’s estimated that nearly 40 percent of the excess deaths related to menthol cigarette smoking in the U.S. from 1980 to 2018 were African Americans.

“These rules represent truly historic action to drive down tobacco use,” stated Yolonda Richardson, president and CEO of Campaign for Tobacco-Free Kids. “Once implemented, they will protect kids from tobacco addiction, advance health equity and save hundreds of thousands of lives, especially Black lives.”

This potential ban has been contemplated by several past administrations, but it’s the Biden administration that is moving forward with it despite significant opposition from the tobacco industry. Health experts and advocates are now urging the administration to finalize and enact these rules promptly, preferably before the year’s end.

“We’ve literally been waiting for 12 years for FDA to move forward with the product standard that would remove both menthol cigarettes and flavored cigars from the marketplace,” said Erika Sward, assistant vice president of national advocacy with the American Lung Association.

“I really cannot understate how significant these rules will be in improving public health and by reducing the number of deaths caused by cigarettes in the years to come,” Sward added.

In 2021, cigarettes with a menthol flavor made up over one-third of all cigarette sales in the U.S., as reported by the Centers for Disease Control and Prevention. This figure is the highest since 1963 when major tobacco firms first began reporting such data to the federal government.

Researchers have long understood that the presence of menthol in cigarettes can enhance their addictive nature. Menthol provides a cooling effect in the throat and airways, which makes the smoke feel smoother and facilitates easier inhalation.

In 2009, Congress enacted a ban on flavored cigarettes through legislation that empowered the FDA to regulate tobacco products. However, menthol was exempted due to a loophole in this law.

At that time, Congress instructed the FDA to assess whether the ongoing sale of menthol cigarettes was “appropriate for public health.”

The Obama administration sought public input in 2013 regarding the regulation of menthol cigarettes but did not propose any specific rule. The issue was revisited in 2018 under the Trump administration and then-FDA Commissioner Scott Gottlieb.

Gottlieb, in a statement then, expressed his belief that “menthol-flavored products represent one of the most common and pernicious routes by which kids initiate on combustible cigarettes.”

Despite this, the FDA under Trump did not establish a formal regulation. Therefore, the proposals made by the Biden administration in April 2022 to ban menthol cigarettes and flavored cigars marked a significant advancement.

“The authority to adopt tobacco product standards is one of the most powerful tools Congress gave the FDA, and the actions we are proposing can help significantly reduce youth initiation and increase the chances that current smokers quit. It is clear that these efforts will help save lives,” FDA Commissioner Robert Califf said at the time.

Mitch Zeller, who served as the head of the FDA’s tobacco center from 2013 until 2022 and helped draft the proposal, said he thinks it’s inevitable that the policy will be introduced.

“We’ve never gotten it to this stage before. And as far as I’m concerned, there’s no going back,” Zeller said.

Still, he acknowledged it should have happened earlier.

“It’s a fair question as to why it didn’t happen in earlier administrations, and I’m not going to try to defend the failure of prior administrations to move menthol forward. There’s no reason why this could not have happened years ago,” Zeller said.

Groups representing the tobacco industry and retailers contend that a national ban on menthol cigarettes will be ineffective in aiding smokers to quit. They argue there’s no established link between menthol and either an increase in cigarette dependency or the initiation of smoking.

Furthermore, these groups warn that such a ban could lead to a rise in an illegal, unregulated market for menthol cigarettes, potentially increasing over-policing in communities of color, echoing the drug war campaigns of the 1980s and 1990s.

The proposed ban targets companies involved in manufacturing, distributing, or selling menthol cigarettes, not individuals who possess or use them. Yet, the ban’s critics often raise civil rights concerns.

Rev. Al Sharpton, speaking to The New York Times in 2019, voiced worries reminiscent of the Eric Garner case, where a Black man was killed in 2014 by police who suspected him of selling loose cigarettes illegally. It was reported that tobacco giant Reynolds American had engaged Sharpton to oppose a menthol tobacco products ban in New York City.

However, advocates for tobacco control and criminal justice experts argue that fears of increased overpolicing due to a menthol ban are unfounded. They point out that in California and Massachusetts, the two states with existing menthol bans, there has been no evidence of such issues.

Philip Gardiner, co-chair of the African American Tobacco Control Leadership Council, dismissed concerns about increased police interactions, noting the absence of any arrests in the U.S. for possessing menthol cigarettes. He attributes these misconceptions to misinformation spread by the tobacco industry and its representatives.

Keith Taylor, a former officer with the New York Police Department and now an adjunct assistant professor at John Jay College of the City University of New York, echoed this sentiment, suggesting that fears about a burgeoning illicit market are exaggerated.

“When you look at this idea of an illicit market, who is being robbed of profits from the sale of menthol cigarettes? It’s not the general public, it’s not the communities that they’re sold in. It’s the cigarette producers,” Taylor said.

Taylor said he understands there could be tension between a federal rule and local law enforcement implementation. But he said it should be handled as a public health issue, not a public safety one.

“Is there potential to misuse the ban to generate arrest of young people for selling it? There’s always a potential, but the hope is that … banning this product will have the long-term benefit of saving lives and costing municipalities less,” he said.