The U.S. Food and Drug Administration’s proposed ban on menthol cigarettes could have unintended consequences, according to leading law enforcement officers.
Among other problems, it could boost the illicit cigarette market. In 2020, of the $203 billion cigarettes sold in the United States, 37 percent were menthol. “Transitioning from a regulated market to an illicit one will lead to about $30 billion of an illicit market,” said Major Neill Franklin, former executive director of the Law Enforcement Action Partnership, in a statement published by Menthol is Not a Crime.
If the FDA bans menthol cigarettes, this will “create crime,” and you will get “homemade menthol cigarettes,” said retired Bureau of Alcohol, Tobacco, Firearms and Explosives agent John Rotunno.
Charles Giblin from the Center for the Advancement of Public Safety and Security stated, “Despite the good intentions … the ban will have unintended consequences. Cross-border smuggling will fill the gap of the prohibition.”
Others highlighted the racist implications of the ban since more than 80 percent of African Americans who smoke prefer menthol cigarettes.
“Bans do not work. During the war on drugs, more Black and Brown people went to jail than in all of slavery. About 90 percent of people targeted by stop-and-frisk were Black and Brown people,” according to John Dixon III, former police chief of Petersburg, Virginia, and former president of the National Organization of Black Law Enforcement Executives.
“We are not promoting people to smoke,” but “we don’t want another situation like that of Eric Garner [Garner was killed by New York Police Department officers after they approached him on suspicion of selling single cigarettes],” said Charles Billups, founding member of the NCJP, retired law enforcement officer and chairperson of the New York State Grand Council of Guardians.
Franklin expanded, “An illicit market is even more problematic for the Black community. Law enforcement will have no option other than to aggressively enforce smuggling and smoking bans … In an effort to identify smugglers, police will ‘creatively interact’ with citizens for minor crimes, like jaywalking, loitering, trespassing, traffic violations—using those crimes for leverage for information on their tobacco sources. This is the same tactic we use for locating guns and drugs.”
The public has until Aug. 2 to submit a written comment via the FDA website.
The Consumer Choice Center, a consumer advocacy group based in Washington D.C., hosted a “Menthol Melee,” proposing alternatives to the Food and Drug Administration’s pending bans on flavored cigars and menthol cigarettes.
The event featured Gwenn Carr, the mother of Eric Garner, who died at the hands of police over untaxed cigarettes, as well as nearly a dozen current and former law enforcement officers who believe the proposed policy will erode community trust in places where officers patrol the streets.
“We are hosting the Menthol Melee to hear from various community activists, law enforcement officers, and research experts who understand far too well how ill-fated a ban on these flavored tobacco products would be,” said Yaël Ossowski, deputy director at the Consumer Choice Center.
“While a ban is well-intended, to stop a generation of people from smoking, it will almost certainly have a disproportionate impact on minority communities due to increased police enforcement and will take away police officers’ time from pursuing actual crimes. It will also create a new illicit market that will give incentives to criminals to traffic on our streets, making communities less safe than before,” said Ossowski.
“Added to this, the FDA has done nothing to offer real alternatives that could help stop smoking today, including vaping devices, nicotine pouches, gums, lozenges, and more,” said Ossowski.
“If the FDA is serious about reducing smoking in our country, then the answer must be on harm reduction in all aspects, rather than ratcheting up bans and restrictions that will cause more harm,” concluded Ossowski.
A full list of all the speakers, as well as the full video, is available on consumerchoicecenter.org.
Action on Smoking and Health (ASH), the African American Tobacco Control Leadership Council (AATCLC), the American Medical Association (AMA) and the National Medical Association (NMA) are dismissing their joint lawsuit against the United States Food and Drug Administration. A rulemaking process to ban menthol as a characterizing flavor is in progress, and “we are grateful to be able to declare victory in this case,” the plaintiffs wrote in a joint statement.
The lawsuit followed the 2013 Citizen’s Petition, which called on the FDA to prohibit menthol in cigarettes.
“As African American physicians, we are thrilled with the FDA’s proposed rule to ban menthol in cigarettes and flavored cigars as a remedy to settle our lawsuit,” said Rachel Villanueva, president of the NMA. “This proposed rule will save lives and improve health within Black communities. This would not have been possible without the leadership and assistance of our co-plaintiffs and attorneys, whom we wish to sincerely thank.”
“We are encouraged by the FDA’s recent action to propose a ban on menthol-flavored cigarettes. We look forward to participating in the rulemaking process as we continue our collective push to ensure these harmful products are removed from the market once and for all,” said AMA President Gerald E. Harmon.
“The FDA has finally taken a major step forward to protect the health of Black Americans, but the work is far from done. We will not stop until no more Black lives are lost due to the predatory marketing of menthol cigarettes and flavored little cigars,” promised Phillip Gardiner, co-chair of the AATCLC.
“ASH’s goal is to use litigation as a tool to protect the right to health of all citizens against the harms of the tobacco industry,” said Kelsey Romeo-Stuppy, managing attorney at ASH. “We are proud to have been a co-plaintiff in this extraordinary demonstration of the power of proactive litigation.”
The FDA has taken a major step toward banning menthol cigarettes in the U.S., but there’s still a long way to go.
TR Staff Report
It’s hard to overstate the significance of the U.S. Food and Drug Administration’s plan, announced on April 28, to ban menthol cigarettes in the United States. While authorities have banned menthol cigarettes in other jurisdictions, such as Brazil (2012), Canada (2017) and the European Union (2020), the impact of those measures was less severe because relatively small shares of smokers preferred menthol cigarettes in those markets. In the U.S., by contrast, menthol products accounted for a whopping 37 percent of all cigarette sales in 2020, according to Statista.
Public health advocates dislike menthol because it reduces the irritation and harshness of smoking, which makes it easier for consumers to take up the habit. According to the FDA, menthol also interacts with nicotine in the brain to enhance nicotine’s addictive effects. “The combination of menthol’s flavor, sensory effects and interaction with nicotine in the brain increases the likelihood that youth who start using menthol cigarettes will progress to regular use,” the agency writes on its website. “Menthol also makes it more difficult for people to quit smoking.”
Unlike in other markets, the debate about menthol cigarettes in the U.S. is also about racial disparities. According to the FDA, nearly 85 percent of African Americans smoke menthol cigarettes compared to 30 percent of white smokers who smoke menthols—a situation industry critics attribute to decades of “predatory marketing” of menthol cigarettes to Black communities.
“By issuing proposed rules today to prohibit menthol cigarettes and all flavored cigars, the FDA is taking historic and long-overdue action to protect our nation’s kids, advance health equity and save lives, especially among Black Americans and other populations that have been targeted by the tobacco industry and suffered enormous harm from the predatory marketing of these products,” said Matthew L. Myers, president of the Campaign for Tobacco-Free Kids.
The FDA expects its menthol ban to reduce the appeal of cigarettes and reduce deaths and disease among current menthol smokers by decreasing cigarette consumption and increasing the likelihood of cessation. “Published modeling studies have estimated a 15 percent reduction in smoking within 40 years if menthol cigarettes were no longer available in the United States,” the agency writes. “These studies also estimate that 324,000 to 654,000 smoking attributable deaths overall (92,000 to 238,000 among African Americans) would be avoided over the course of 40 years.”
Not everybody is convinced a menthol ban would achieve the desired health effects, however. “We strongly believe that there are more effective routes to deliver tobacco harm reduction than banning menthol in cigarettes,” said BAT Chief Marketing Officer Kingsley Wheaton in a statement. “Evidence from other markets, including Canada and the EU where similar bans have been imposed, demonstrates little impact on overall cigarette consumption.
“The scientific evidence shows no difference in the health risks associated with menthol cigarettes compared to nonmenthol cigarettes, nor does it support that menthol cigarettes adversely affect initiation, dependence or cessation. As a result, we do not believe the published science supports regulating menthol cigarettes differently from nonmenthol cigarettes,” said Wheaton.
Guy Bentley, director of consumer freedom at the Reason Foundation, says supporters of menthol prohibition have been disappointed by lackluster results in other jurisdictions that have banned the products. “The most common result of menthol prohibition has been for the majority of menthol smokers to switch to equally dangerous nonmenthol cigarettes, continue to buy illicit menthol or use devices to flavor nonmenthol cigarettes,” Bentley wrote on the Reason Foundation’s website.
Morgan Stanley expects most American smokers to switch to nonmenthol cigarettes, obtain their mentholated cigarettes illicitly or switch to mentholated vapor products in the wake of a menthol ban. In addition, the investment bank predicts that consumers may “self-mentholate.” This practice would be legal, and menthol is readily available for purchase online on platforms such as Amazon.
According to Morgan Stanley, menthol bans in Europe and Canada did not have a measurable impact on the cigarette market, though the category was significantly smaller. “The impact in Europe was moderate because it was less aggressive in enforcing menthol rules, had loophole clauses (e.g., menthol filters), a low menthol smoker population (about 5 percent), and [it] did not skew toward a certain demographic group like it does in the U.S.,” the bank wrote in a note to investors. “The most significant impact was in Poland (about 25 percent menthol [smokers]), which saw a rise in illicit trade from neighboring countries.”
However, a study of Canada’s experience, published in Tobacco Control, noted that among daily smokers, menthol cigarette smokers were more likely than nonmenthol smokers to have quit smoking in the wake of that country’s menthol ban. If the United States’ experience mirrors that of Canada after it banned menthol cigarettes, 1.3 million people would quit smoking, and potentially hundreds of thousands of premature deaths could be averted, Geoffrey Fong, principal investigator of the International Tobacco Control Policy Evaluation Project, was quoted as saying by The New York Times.
Regardless of its impact on public health, a U.S. menthol ban would considerably impact the operations of tobacco manufacturers operating in that country. According to Morgan Stanley, BAT is most exposed to the category, with menthol cigarettes representing 55 percent of U.S. volumes and 60 percent of U.S. profits (and about 30 percent of group profits). The investment bank estimates that menthol represents 19.5 percent of volumes and 15 percent of profits for Altria group.
While the FDA’s April 28 announcement is significant, Goldman Sachs notes that there is still a long way to go for the plan to become reality. The agency must still take multiple steps before it can issue and implement a final rule, starting with a 60-day public comment period, which ends on July 5. After that, the Office of Management and Budget must review the proposed rule to ensure the FDA adequately addresses all public concerns, including unintended consequences, followed by a statutory delay of between one year and two years before implementation. Legal challenges could delay the ban even further. “Ultimately, it is a complex and lengthy process that, based on precedent, could likely take several years to be successfully implemented, if at all,” wrote Goldman Sachs in a note to investors.
Expect tobacco companies to generously share their views during the comment period. “We are reviewing the details of the proposed regulations and will continue to actively participate in the rulemaking process by submitting science-based comments to FDA,” said Wheaton.
The U.S. Food and Drug Administration is now accepting comments to its proposed rules prohibiting menthol cigarettes and characterizing flavors in cigars.
To comment on the proposed menthol product standard, click here.
To comment on the proposed flavored cigar product standard, click here.
The public may provide comments on these proposed rules through July 5.
Menthol cigarettes are disproportionately popular among Black smokers in the United States. Out of all Black smokers, nearly 85 percent smoke menthol cigarettes, compared to 30 percent of White smokers who smoke menthols, according to the FDA.
While proponents argue that the ban will help end “predatory marketing” of menthol cigarettes to Black communities, some civil rights advocates worry the measure might contribute to more violent interactions between police and communities of color.
“What we said is, ‘Y’all have got to consider unintended consequences.’ Imagine some cop pulling a kid over, saying, ‘Where did you buy or get that Kool cigarette?’” Reverend Al Sharpton was quoted as saying by Politico after the FDA announcement. “People are not going to stop smoking Newports and Kools because of a rule. They’re going to go and get them from people that go to the street in the black market. Then what happens?”
“The proposed ban could also have serious economic and criminal justice implications for communities across the nation,” Representative Donald McEachin said. It will “disproportionately impact African Americans and lower income communities while tobacco products commonly used by predominantly white or more affluent populations [go] unchecked.”
On April 22, Family members of George Floyd, Eric Garner and Trayvon Martin—black men who were killed by either police or people acting as security guards—sent a letter to the White House urging President Biden to understand the unintended consequences of such a ban, according to The Hill.
“Banning menthol cigarettes will only increase the value and attractiveness. While we have been told that Black smokers will not be criminalized for possessing menthol cigarettes, that does not match our experience with other cigarette policies,” said the letter.
Representative Lisa Blunt Rochester, by contrast, welcomed the FDA plans. “I’ve seen in my own family and through my own life experience the consequences of the tobacco industry specifically targeting the Black community in America,” she said. “It’s time for these highly addictive menthol cigarettes to be banned.”
The Campaign for Tobacco-Free Kids, meanwhile, accused the tobacco industry of pushing “false claims” that a menthol ban will subject Black Americans to more law enforcement abuse. The FDA, it stated, has said that it rules will apply to manufacturers and retailers and that it cannot and will not enforce individual consumer possession or use of menthol cigarette or any other tobacco products.
“Racial bias in policing is a critical issue that must be addressed. But the tobacco industry’s cynical fearmongering cannot hide the fact that the industry itself has caused so much harm to Black Americans through the targeted marketing of menthol cigarettes,” the CTFK wrote in a statement.
The ban on menthol cigarettes is closer to becoming a reality. After years of discussion, the U.S. Food and Drug Administration has instituted a proposed rule to place a ban on menthol combustible cigarettes and flavored cigars. Whether the menthol ban will also cover next-generation tobacco products, such as e-cigarettes, has not yet been clarified.
“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,” said FDA Commissioner Robert M. Califf. “Through the rulemaking process, there’s an important opportunity for the public to make their voices heard and help shape the FDA’s ongoing efforts to improve public health.”
When finalized, the FDA states that the proposed menthol product standard will:
reduce the appeal of cigarettes, particularly to youth and young adults, decreasing the likelihood that nonusers who would otherwise experiment with menthol cigarettes would progress to regular smoking; and
improve the health and reduce the mortality risk of current menthol cigarette smokers by decreasing cigarette consumption and increasing the likelihood of cessation.
According to the FDA, the proposed product standards are based on clear science and evidence establishing the addictiveness and harm of the products. Many organizations were quick to condemn the regulatory agency for proposing the rule that is opposed by all major law enforcement, civil rights and criminal justice reform organizations. Opponents of the menthol ban say that banning menthol products will do nothing to reduce combustible cigarette smoking rates but will lead to an increase in people purchasing products on the black market.
“This misguided proposal will have disastrous impacts on public health and public safety. It will do nothing to reduce smoking rates and instead make the United States less safe.” said Tim Andrews, director of Consumer Issues for Americans for Tax Reform (ATR). “It is unfortunate that as violent crime rates rise across the country, the FDA chooses to divert valuable police resources to pursue an unnecessary ban on menthol products.”
Andrews argues that a menthol ban exposes “vulnerable members of minority communities to conflict with law enforcement, and their purchases could also fund sophisticated international criminal syndicates.” According to the U.S. Department of State, illicit tobacco’s links to funding terrorist organizations already present a “serious threat” to national security. “This policy would worsen the problem while also depriving state governments of excise revenue, putting state government programs at risk,” says Andrews.
Richard Marianos, a senior law enforcement consultant who has served more than 27 years at the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives and who is now a consultant and adjunct lecturer at Georgetown University, says that in many markets, such as Asia, companies are creating products to make mentholated cigarettes, because those types of products are not covered by the rule.
“They flavor packets you just slide into a pack of cigarettes. You buy your cigarettes, you put that in there and by the time you get home, the whole pack is mentholated. They also have these– it’s like a little Tic Tac box with a round, small, little mint … but what it does is you put it into the filter, shake, crush and now it’s a menthol cigarette,” said Marianos. “Are we eventually going to be asking border protection to now start looking for minty flavor packets or Tic Tac boxes when they have to concentrate on biological and nuclear threats? When you overlook public safety surrounding this matter, you’re creating an unhealthy situation, not just for smokers, but anybody who’s out there.”
Marianos says that a menthol ban will create a greater level of diversion and criminal activity with high-value targets overseas, it’ll bring more organized crime into the United States. It’ll also create a greater market for border countries to begin manufacturing menthol and bring it into the United States.
“There was one investigation in particular, I remember, where the individual said on a wire that once they banned menthol cigarettes in the United States, you can pave the roads in gold because of the boost in sales of black market and DIY menthol cigarettes,” he said. “Prohibition doesn’t work. Your quality of police work goes down; they can’t concentrate on violent crime as much and it creates a greater wedge between themselves and the community.”
Guy Bentley
Guy Bentley, director of Consumer Freedom Research for the Reason Foundation, said that similar bans have had minimal effects on tobacco consumption in other countries such as Canada and the U.K., adding that a menthol ban is likely to lead to more policing in minority communities, more incarceration, boost black market sales and undermine criminal justice reforms in the U.S.
Bentley explained that a recent study funded by the Norwegian Cancer Society in partnership with the Polish Health Ministry found that in Poland – the EU state with the largest pre-ban menthol share – found “mixed evidence” that the ban is working as intended.
Bentley argues the FDA and Biden administration should apply a harm reduction model, educating the public about safer alternatives to conventional cigarettes and the latest smoking cessation options. Andrews concurs with Bentley, adding that the proposed rulemaking will inevitably lead to further growth of illicit markets, put members of minority communities in danger and divert law enforcement resources away from real crime.
“It ignores best practice expert recommendations on how to reduce smoking rates through proven harm reduction technologies, is a disaster for public health, and will make all Americans less safe,” Andrews said. “If the Biden Administration truly cared about the American people, they would junk this anti-science and genuinely harmful proposal immediately.”
Beginning May 4, 2022, the public can provide comments on these proposed rules, which the FDA will review as it considers future action. The agency also will convene public listening sessions on June 13 and June 15 to expand direct engagement with the public, including affected communities.
The public will have the opportunity to submit either electronic or written comments directly to the dockets on the proposed rules through July 5, 2022. Once all the comments have been reviewed and considered, the FDA will decide whether to issue final product standards.
The FDA also states that it cannot and will not enforce against individual consumers for possession or use of menthol cigarettes or flavored cigars. If the proposed rules are finalized and implemented, FDA enforcement will only address manufacturers, distributors, wholesalers, importers and retailers who violate the rules.
The U.S. Food and Drug Administration today announced a plan to ban the sale of menthol cigarettes in the United States. Menthols account for about one-third of the U.S. cigarette market.
The agency expects that taking menthol cigarettes off the market will reduce smoking levels and lower the number of young people taking up the habit.
“The proposed rules would help prevent children from becoming the next generation of smokers and help adult smokers quit,” said U.S. Health and Human Services Secretary Xavier Becerra in a statement. “Additionally, the proposed rules represent an important step to advance health equity by significantly reducing tobacco-related health disparities.”
With the FDA plan, the U.S. is following in the footsteps of Canada and the European Union, which banned menthol cigarettes in 2017 and 2020, respectively. Menthol is the only cigarette flavor that wasn’t banned under the 2009 Family Smoking Prevention and Tobacco Control Act, which gave the FDA authority over tobacco products.
In 2019, there were more than 18.5 million current menthol cigarette smokers ages 12 and older in the U.S., with particularly high rates of use by youth, young adults and African American and other racial and ethnic groups, according to the FDA. The agency cited modeling studies suggesting that there would be a 15 percent reduction in smoking within 40 years if menthol cigarettes were no longer available in the U.S. These studies also estimate that 324,000 to 654,000 smoking attributable deaths overall (92,000 to 238,000 among African Americans) would be avoided over the course of 40 years.
Health advocates oppose menthol because the ingredient’s “cooling” effect makes it easier to start smoking and harder to quit. The health consequences have disproportionally fallen on Black smokers, 85 percent of whom use menthols.
Critics have cautioned that a menthol ban could have unintended consequences. For example, Guy Bentley, director of consumer freedom at the Reason Foundation, warned of increased black market sales and more incarceration. The desired public health gains, he wrote, could also be achieved by applying the harm reduction model to tobacco policy.
Along with its menthol ban, the FDA also announced product standards to prohibit all characterizing flavors (other than tobacco) in cigars.
“Characterizing flavors in cigars, such as strawberry, grape, cocoa and fruit punch, increase appeal and make cigars easier to use, particularly among youth and young adults,” the FDA wrote in its announcement. “More than a half million youth in the U.S. use flavored cigars, and in recent years, more young people tried a cigar every day than tried a cigarette.”
Beginning May 4, the public can provide comments on these proposed rules. The FDA also will convene public listening sessions on June 13 and June 15.
According to an Associated Press report, dozens of interest groups have met with White House staffers to try to persuade them to oppose the proposal.
Menthol is the only cigarette flavor that wasn’t banned under the 2009 Family Smoking Prevention and Tobacco Control Act, which gave the FDA authority over tobacco products. Menthol cigarettes account for more than one-third of the U.S. cigarette market.
Health advocates oppose menthol because the ingredient’s “cooling” effect make it easier to start smoking and harder to quit. The health consequences have disproportionally fallen on black smokers, 85 percent of whom use menthols.
In recent weeks, menthol ban opponents have stepped up their campaign against the proposed measure, meeting with lawmakers and publishing editorials. For example, earlier this month, Guy Bentley of the Reason Foundation warned that banned banning menthol cigarettes is a high-risk strategy.
All major federal regulations—particularly those that could impact the economy—must be reviewed before publication by the White House Office of Management and Budget. Outside groups and individuals can request a meeting, offering a last chance to try and shape the final product.
According to the Associated Press, more than half of the budget’s office on the menthol proposal were requested by group that traditionally oppose tobacco restrictions. Correspondence shows the groups raised concerns about unintended consequences of a ban, including increases in illegal market sales and increased policing of Black communities to contraband cigarettes.
More than a quarter of meeting were reportedly requested by gas station owners, convenience stores and distributors. Members of the Southern Association of Wholesale Distributors, for example, said that some convenience stores could lose a third of their cigarette revenue, forcing them to close and create “food deserts”—geographical areas in which it is difficult to buy affordable or good-quality fresh food.
Other groups, such as the Americans for Tax reform, which has received funding from Altria Group, warned of lost government revenue.
Health advocates dismiss concerns about over-policing of Black communities and illicit sales. The proposed rules, they say, target distribution rather than possession, and most cigarette smuggling in the U.S. today is across state lines to take advantage of difference in tax rates. If menthol production stops, there will be little supply to smuggle, say health advocates. Canada banned menthol cigarettes in 2018.
The U.S. Food and Drug Administration plans to issue proposed rules this spring that would prohibit menthol cigarettes. The measure is intended in part to address a health disparity since a significantly larger percentage of African Americans than whites smoke menthol cigarettes and African American men have higher lung cancer incidence and death rates from the disease.
According to the FDA, nearly 85 percent of all non-Hispanic Black smokers smoke menthol cigarettes, compared to 30 percent of non-Hispanic white smokers. The agency also believes that menthol-flavored cigarettes can be more addictive than non-menthol cigarettes and harder to quit.
However, the study by the Vanderbilt researchers revealed similar quit rates among menthol and non-menthol smokers overall and no statistically significant difference between white and African American participants.
The researchers tracked 16,425 smokers who entered the study between 2002 and 2009 and completed a follow-up survey between 2008-2012, 2012-2015 and 2015-2017. The average annual quit rate from those surveys was 4.3 percent for menthol smokers and 4.5 percent for non-menthol smokers.
Prior research by this Vanderbilt research group has shown that non-menthol smokers are at higher risk for lung cancer. They also cited research from Canada, where menthol-flavored cigarettes are banned, which revealed that most menthol smokers tend to switch to non-menthol brands rather than quit.
“If the existing epidemiologic data showing lower risk of lung cancer among menthol than non-menthol smokers hold generally, then in the long-term if high percentages of menthol smokers switch to non-menthols, the ban could have the unintended consequence of a net increase rather than decrease in risk, at least for lung cancer,” the researchers noted in the study.
