Public Health England and other health groups have asked the U.K. government to prohibit the sale of “menthol replacement” cigarettes such as NewSuperking Green and Sterling New Dual, reports Express.
Despite a nationwide ban in the U.K. on the sale of menthol cigarettes, Japan Tobacco International has sold more than £1 billion ($1.33 billion) worth of cigarettes laced with menthol in the past year since the ban went into effect, according to critics.
JTI insists its brands comply with the law. “We no longer sell cigarettes with characterizing flavors (including flavored capsule cigarettes),” the company stated. “Cigarettes with a characterizing menthol flavor have been banned from May 20, 2020. We are confident all our products are fully compliant with U.K. law. Some JTI cigarettes and rolling tobacco sold in the U.K. do still contain very low levels of menthol. This is not prohibited under the law, provided the use of such flavorings does not produce a clearly noticeable smell or taste other than one of tobacco—which they do not.
“The launch by competitors of similar products in EU markets shows they, too, are confident that products with low levels of menthol are permitted by law. All the ingredient information for our new products was shared with the authorities at both U.K. and EU level via the EU Common Entry Gate (EU-CEG) prior to their being placed on the market, so there is full transparency throughout this process. We look forward to providing further information if requested by the authorities.”
Tobacco companies across Europe have been introducing alternatives to their discontinued menthol brands since the EU banned such tobacco products in May 2020. Last year, cigarette manufacturers came under scrutiny in Ireland for supposedly sidestepping the measure.
BAT has admonished Ireland’s tobacco regulator for failing to take action against competitors selling new products that may be in breach of the EU ban on menthol cigarettes, reports The Irish Times.
There is “no rationale for the HSE to further delay” its action against tobacco companies that may be breaching the ban, BAT wrote in a letter to the Health Service Executive (HSE) this week. “We are concerned that inaction is leading to more products appearing on the market.”
The HSE said a year ago that it would investigate tobacco companies for allegedly breaching the Europe-wide ban on menthol flavors, which some have allegedly tried to circumvent with techniques exploiting loopholes while marketing them as menthol substitutes.
Japan Tobacco International, for example, launched Silk Cut Choice Green, which it admitted still contained traces of menthol. The company insists Silk Cut Choice Green complies with rules because the cigarettes don’t taste or smell of menthol. Philip Morris, the maker of Marlboro, also launched a new brand targeted at smokers of its old Marlboro Green but says the new product is legal and menthol-free. BAT did not launch a menthol substitute.
Despite its year-long investigation, the HSE’s Tobacco Control Office has yet to issue any findings.
Ireland’s market for the flavored cigarettes was worth up to €250 million ($304.92 million) before the ban came into force last May.
Tobacco Reporter detailed the industry’s efforts to serve former menthol smokers in the EU with alternative products in June 2020.
A year to the day since menthol cigarettes were banned in the U.K., more than two-thirds of vapor retailers are reporting a rise in sales of menthol-flavored e-liquids, according to a study by the U.K. Vaping Industry Association (UKVIA).
The ban last year, which also prevented menthol filters, papers and skinny cigarettes from being produced or sold in the U.K., followed a four-year phasing-out period, which saw smaller packs of rolling tobacco and 10-packs of cigarettes banned in 2017.
The study revealed that more than 70 percent of owners of brick-and-mortar stores and online retail operations said they had seen an uptake in demand for menthol vape products.
And, while fruit e-liquids remained the customer favorite, menthol was the second most popular flavor, according to the survey.
“What we have witnessed in the U.K. is that menthol as an ingredient in vape e-liquids has continued to increase following the combustible menthol ban and is now one of the most important components of all e-liquids,” said Tim Phillips, independent analyst at ECigIntelligence.
Menthol as an ingredient in vape e-liquids has continued to increase following the combustible menthol ban and is now one of the most important components of all e-liquids.
UKVIA Director-General John Dunne said the survey results were a clear indication of the importance e-cigarettes have in helping smokers to quit their habits in favor of vaping, which Public Health England acknowledges is far less harmful than combustible tobacco.
“Our survey of retailers clearly shows that, as menthol cigarettes were removed from sale, vape stores witnessed an increase in sales of the same flavor in e-liquid form,” he said.
“It is not unreasonable to surmise that the majority of menthol e-liquid sales above retailers’ baseline pre-ban were to those who would have previously smoked cigarettes.”
Tobacco companies will have plenty of time to adopt to a U.S. menthol ban, if one is ever implemented, according to financial analysts quoted by the Winston-Salem Journal.
On April 29, the U.S. Food and Drug Administration announced its intention to ban the flavoring in combustible cigarettes and cigars. The agency expects to unveil product standards in 2022. The FDA would then have to submit its proposal, consider comments and prepare a final proposal, which could take multiple years, according to RBC Capital Markets analyst Nik Modi.
That’s not counting expected multiple rounds of lawsuits, some of which could advance to the U.S. Supreme Court to resolve. The FDA is required to base its rulemaking on science, and the tobacco industry is likely to challenge the scientific basis for a menthol ban.
“The published science does not support regulating menthol cigarettes differently from nonmenthol … nor does it support that menthol cigarettes adversely affect initiation, dependence or cessation,” Reynolds American said on April 29.
We consider the U.S. regulatory environment to be manageable. We expect any menthol ban, if one comes, to be years and years away.
Goldman Sachs analyst Bonnie Herzog noted that the FDA didn’t also reveal plans to dramatically reduce the nicotine levels in cigarettes during the menthol ban announcement.
“It is not surprising to us given less urgency around this issue, i.e., no court-imposed deadline, but we still think there’s a possibility that something could be announced in the coming weeks/months ahead … as the critical premarket tobacco [product] application process for e-vapor unfolds,” Herzog was quoted as saying.
“Both issues entail a complex and lengthy process that, based on precedent, will likely take several years to be successfully implemented, if at all.”
In 2018, the agency officially announced its intention to require cigarette manufacturers to lower the nicotine levels in their products to nonaddictive levels, but the FDA has not yet acted. In the weeks prior the menthol announcement, speculating mounted that the agency would soon act on its reduced-nicotine plan.
Piper Sandler analyst Michael Lavery said, “we consider the U.S. regulatory environment to be manageable. We expect any menthol ban, if one comes, to be years and years away.”
Americans for Tax Reform has released a letter signed by 36 organizations representing millions of taxpayers and consumers throughout the United States urging the Food and Drug Administration to reject a proposed ban on menthol cigarettes.
The letter notes the social impact of criminalizing an activity undertaken by over 18 million Americans, primarily from minority communities, asserting, “If this proposal were to be enacted, it is inevitable that it would lead to further confrontations between individuals and law enforcement and break down trust even further. In addition, by diverting law enforcement resources to preventing the sale of menthol cigarettes, this policy will reduce the resources available for the prevention and solving of property and violent crimes.”
The letter continues, “We further draw your attention to the fact that any comprehensive analysis of the data from jurisdictions where menthol products have been banned demonstrates that, while the majority of users switch to nonmenthol cigarettes, over 20 percent of menthol smokers moved to purchasing illicit products through the black market. Not only does this put all parties involved at risk of police involvement, the illicit tobacco market has increasingly been run by sophisticated international criminal syndicates, often with links to sex trafficking, money laundering and even, increasingly, terrorism.”
For these reasons, as the letter noted, the U.S. State Department has explicitly called tobacco smuggling, “a threat to national security.”
The letter also recognized the importance of promoting harm reduction over prohibition, writing, “If the FDA wishes to reduce smoking rates, the best way of doing this is not through bans but rather embracing life-saving new technologies to help smokers quit.
“The science is now overwhelming that the most effective way for smokers to quit is through the use of noncombustible reduced-risk tobacco alternatives, ranging from vapor and “heat-not-burn” devices to oral nicotine-delivery systems or moist loose tobacco (which the FDA already allows to be marketed as reducing the cancer risk for persons who make the switch).”
If the FDA wishes to reduce smoking rates, the best way of doing this is not through bans but rather embracing life-saving new technologies to help smokers quit.
The letter concluded by urging the FDA to “engage in evidence-based policymaking and embrace new technologies and alternative nicotine-delivery systems that have been proven will be able to save millions of American lives.”
Earlier, the American Civil Liberties Union also sent a letter, signed by 27 civil liberty and racial justice organizations, expressing its concern about the impact on minorities of a menthol ban.
“At this pivotal moment, as the public demands an end to police violence erupting from minor offenses, we call on the Biden administration to rethink its approach and employ harm reduction strategies over a ban that will lead to criminalization,” said Aamra Ahmad, senior legislative counsel for the ACLU.
“As we approach the one-year anniversary of the murder of George Floyd—only a few years removed from the killing of Eric Garner, a Black man killed by NYPD for selling loose, untaxed cigarettes—the racially disparate impact of the criminal legal system has captured the nation’s attention. It is now clear that policies that amount to prohibition have serious racial justice implications.”
Anti-tobacco activist Stanton Glantz dismissed the argument that getting rid of menthol would lead to more police violence against African Americans as baseless. He accused the ACLU of advocating tobacco positions after taking industry money.
“The ACLU has been carrying the tobacco industry’s water for decades,” Glantz wrote on his blog. The ACLU has opposed clean indoor air laws since shortly after I first got involved in trying to pass them in 1978, arguing against the evidence that secondhand smoke was dangerous and that there was a right to smoke.
“Why? Thanks to a series of reports in the early 1990s by legendary Washington Post investigative reporter Morton Mintz (Nieman Reports, Advocacy Institute), we now know that the ACLU secretly accepted millions of dollars from the tobacco industry,” he added.
The U.S. Food and Drug Administration’s plan to ban menthol cigarettes and flavored cigars is credit negative for the tobacco industry and settlement asset-backed securities because, if enacted, the initiatives would accelerate cigarette volume declines and hurt profitability, according to Moody’s Investor Service.
Tobacco companies that sell menthol cigarettes in the U.S. market would be negatively affected, although some existing smokers will likely migrate to nonmenthol cigarettes, thus limiting the negative impact of such measures on consumption.
Given their strong financial metrics, tobacco companies would likely be able to absorb any decline in performance without a major deterioration in their credit metrics. Approximately 29 percent of cigarette sales in the U.S. are menthol flavored per Euromonitor.
On April 29, the FDA said that it would work toward developing a regulation banning menthol cigarettes and flavored cigars within the next year. Moody’s expects tobacco companies would seek to strike down such a ban through the courts, so implementation could be years away. Any ban would need to be science-based or it would not withstand judicial review.
The investor service estimates that U.S. cigarette volumes will decline between 3 percent and 5 percent over the next three years to five years excluding a menthol ban. However, it believes a menthol ban would likely accelerate that rate of decline to the low double-digit level. “We expect tobacco companies would be able to take pricing actions to initially offset this decline, but their ability to do so would diminish over time as cigarettes become less affordable,” Moody’s wrote in a note to investors.
“We believe that banning menthol cigarettes, which represent around 29 percent of U.S. cigarette sales by volume, would also likely increase illicit trade, resulting in a loss of revenue for legal manufacturers as well as a loss of tax revenue for federal, state and local governments.”
Among the companies with the most exposure are British American Tobacco (BAT) and Altria Group, according to Moody’s. Through its subsidiary, Reynolds American Inc., BAT generates approximately 20 percent to 25 percent of its operating profits from menthol cigarettes. Altria Group Inc. generates approximately 20 percent of its sales from menthol cigarettes.
Given their strong financial metrics, tobacco companies would likely be able to absorb any decline in performance without a major deterioration in their credit metrics.
BAT relies on the U.S. for about 45 percent of its operating profits, of which underlying menthol cigarette volumes account for around 50 percent. Moody’s estimates that Imperial Brands generates around 10 percent of its operating profits from sales of menthol cigarettes, based on a U.S. contribution to total profit of around 25 percent, of which underlying menthol cigarette volume accounts for 45 percent. Like Altria, BAT has alternative products, too, in the U.S. market, such as oral tobacco and vaping products, which could at least partly offer alternatives to menthol smokers.
Altria would be impacted by a menthol ban given its large market share; however, several factors would mitigate this impact. Altria offers a suite of noncombustible alternative products, such as e-cigarettes (through its 35 percent investment in Juul) and oral tobacco, that smokers could potentially convert to should a menthol ban be implemented. Altria also sells the IQOS heat-not-burn device in the U.S. under a licensing agreement with Philip Morris International (PMI). The FDA has authorized IQOS as a modified-risk tobacco product, and IQOS could gain new users if menthol products are banned.
Finally, Altria has strong financial metrics and could potentially shift its financial policy to offset a decline in operating performance, including decreasing its dividend payout or share repurchase activity.
PMI has no direct exposure to the U.S. cigarette market and would not be negatively impacted by this ban, according to Moody’s.
The FDA stated that it intends to start the process for advancing two tobacco product standards for menthol in cigarettes and all flavors in cigars with the aim to ban these products. The agency specifically seeks to reduce the number of new smokers, increase the likelihood that existing menthol smokers quit smoking and address health disparities among minority communities, where the FDA says usage of flavored cigarettes is high.
We believe that banning menthol cigarettes, which represent around 29 percent of U.S. cigarette sales by volume, would also likely increase illicit trade, resulting in a loss of revenue for legal manufacturers as well as a loss of tax revenue for federal, state and local governments.
Tobacco companies believe that the published science so far has not supported regulating menthol cigarettes differently from nonmenthol and that scientific evidence does not show a difference in health risks between menthol and nonmenthol cigarettes. The companies say that scientific evidence does not support that menthol cigarettes adversely affect initiation, dependence or cessation.
Other markets have imposed similar bans, including Canada in 2017 and the European Union in 2020. Although the impact of such bans on overall cigarette consumption is still being evaluated, the rate of decline in the overall cigarette volumes sold by tobacco companies has not significantly changed so far.
A ban on menthol cigarettes in the U.S. would also be credit negative for long-dated tobacco settlement bonds backed by the 1998 Master Settlement Agreement (MSA) payments. The performance of those ABS directly depends on annual U.S. cigarette volumes, and an accelerated volume decline will materially lower revenue to the bonds. Certain alternative tobacco products, such as the heated-tobacco units used with IQOS2, are included under the MSA as part of revenue to the ABS. But these alternative products are currently in their infancy in the U.S., and their sales will not offset the material decline in revenue should the FDA implement its menthol cigarette ban, according to Moody’s.
Tobacco companies are assessing the impact of the Food and Drug Administration’s proposal to ban menthol cigarettes and cigars. On April 29, the agency announced it is working toward issuing proposed product standards within the next year.
Altria and Reynolds American said they would evaluate the proposal, while Imperial’s U.S. business, ITG Brands, said it was disappointing but not unexpected.
“We believe the rulemaking process will reveal that there is no clear scientific evidence to support a federal menthol and flavor ban,” ITG Brands wrote in a statement. “We are hopeful that FDA will follow the law and prioritize sound policy and science over political pressure.
“ITG Brands is well prepared to engage with the FDA to ensure that the agency is guided by the science on this issue and that regulators give due consideration to the numerous unintended consequences that such policies would inevitably bring. We will also make sure the voices of our adult consumers and wholesale and retail partners are represented during every stage of the years-long rulemaking process.”
“We share the common goal of moving adult smokers from cigarettes to potentially less harmful alternatives, but prohibition does not work,” an Altria spokesman told Reuters. “Criminalizing menthol will lead to serious unintended consequences.”
Reynolds, which owns the top-selling U.S. menthol brand Newport, said in a statement Thursday that “the published science does not support regulating menthol cigarettes differently from nonmenthol … nor does it support that menthol cigarettes adversely affect initiation, dependence or cessation.”
“Reynolds will evaluate any proposed regulation and will participate in any consultation and the rulemaking process by submitting robust, science-based evidence.”
U.S. menthol cigarettes accounted for about 25 percent of BAT’s profit, 20 percent for Altria and 15 percent for Imperial, according to brokerage Jefferies.
The proposed ban can take years to implement and might throw the health regulator into protracted legal battles with the industry.
Anti-smoking groups have for decades argued that mentholated cigarettes contribute to disproportionate health burdens on Black communities and often draw young people into smoking.
Campaign for Tobacco-Free Kids President Matthew Myers said the latest move could be the “strongest action” that the United States “has ever taken to drive down the number of kids who start smoking.”
Gregory Conley, president of the American Vaping Association, said the FDA’s initiative has the potential to backfire if the agency does not promote nicotine and tobacco harm reduction products along with the menthol ban.
“Evidence from other countries suggests that a menthol ban is not a magic wand that will spur a majority of users to quit nicotine entirely,” Conley was quoted as saying by The Winston-Salem Journal.
“There will be no massive public health benefit if the response from most menthol and little cigar smokers is to switch to Marlboros or use illicit products bought off the street,” said Conley.
Menthol cigarettes are already banned in Brazil, the United Kingdom and the European Union. California and Massachusetts have also outlawed mentholated cigarettes.
The FDA is also considering requiring cigarette manufacturers to lower the levels of nicotine in their products to nonaddictive levels.
“Lowering nicotine content in cigarettes … that’s something that’s still under consideration,” acting FDA Commissioner Janet Woodcock said on a media call on Thursday.
The case for banning menthol fails on both public health and broader societal grounds, according to Guy Bentley, the director of consumer freedom research at Reason Foundation. On April 29, the U.S. Food and Drug Administration announced its intention to ban menthol as a characterizing flavor in cigarettes and all characterizing flavors (including menthol) in cigars.
The agency said it is working toward issuing proposed product standards within the next year. As part of the rulemaking process, the FDA must solicit input and consider consequences of a menthol ban, including unintended consequences.
In a commentary published on the Reason Foundation’s website, Bentley says the proposed menthol ban is illiberal and violates the fundamental spirit of fairness. He goes on to lists 10 reasons why such a measure would be misguided:
Contrary to what proponents of a ban say, most youth smokers don’t use menthol cigarettes. According to an analysis by the Centers for Disease Control and Prevention (CDC), the popularity of menthol cigarettes among young people has declined substantially. From 2014 to 2018, the percentage of youth smokers using a menthol product fell from 54.5 percent to 46.1 percent.
While Black smokers use menthol at significantly higher rates than white smokers do, they have lower smoking rates overall. According to CDC data for 2020, the rate of smoking among Black, non-Hispanic high school students was 2.8 percent compared to 5.3 percent of white, non-Hispanic smoking high school students.
Black adults smoke at a similar rate to white adults but the preferred products of white smokers aren’t targeted by the ban.
States with higher menthol consumption have lower youth smoking rates.
Menthol prohibition will create illicit markets and more police interactions, especially in minority communities. The U.S. illicit tobacco market is already between 8.5 percent and 21 percent of total sales and represents between $2.95 billion and $6.92 billion in lost gross state and local tax revenues.
Menthol bans have a poor record of reducing smoking. According to a survey published by the Foundation for a Smoke-Free World, just 8 percent of European menthol smokers said they had quit after the EU ban on menthol cigarettes took effect in May 2020.
Menthol cigarettes are no more dangerous than nonmenthol cigarettes. In fact, a study published in the Journal of the National Cancer Institute found that menthol smokers’ risk of lung cancer was around 30 percent lower than nonmenthol smokers.
Menthol cigarettes are not more addictive than nonmenthol cigarettes.
Menthol bans are unnecessary thanks to safer nicotine alternatives like e-cigarettes.
Adults should be free to choose which cigarettes they smoke.
The U.S. Food and Drug Administration has stated its intent to ban menthol as a characterizing flavor in cigarettes and all characterizing flavors (including menthol) in cigars. In a statement released today, the agency said it is working toward issuing proposed product standards within the next year.
“This decision is based on clear science and evidence establishing the addictiveness and harm of these products and builds on important previous actions that banned other flavored cigarettes in 2009,” the FDA wrote in its press release.
“Banning menthol—the last allowable flavor—in cigarettes and banning all flavors in cigars will help save lives, particularly among those disproportionately affected by these deadly products,” said acting FDA Commissioner Janet Woodcock.
“With these actions, the FDA will help significantly reduce youth initiation, increase the chances of smoking cessation among current smokers and address health disparities experienced by communities of color, low-income populations and LGBTQ+ individuals, all of whom are far more likely to use these tobacco products.”
According to the FDA, there is strong evidence that a menthol ban will help people quit. “Studies show that menthol increases the appeal of tobacco and facilitates progression to regular smoking, particularly among youth and young adults,” the agency stated. “Menthol masks unpleasant flavors and harshness of tobacco products, making them easier to start using. Tobacco products with menthol can also be more addictive and harder to quit by enhancing the effects of nicotine.”
One study cited by the FDA suggests that banning menthol cigarettes in the U.S. would lead an additional 923,000 smokers to quit, including 230,000 Black Americans in the first 13 to 17 months after a ban goes into effect. An earlier study projected that about 633,000 deaths would be averted, including about 237,000 deaths of Black Americans.
These flavor standards would reduce cigarette and cigar initiation and use, reduce health disparities and promote health equity by addressing a significant and disparate source of harm.
“For far too long, certain populations, including African Americans, have been targeted and disproportionately impacted by tobacco use. Despite the tremendous progress we’ve made in getting people to stop smoking over the past 55 years, that progress hasn’t been experienced by everyone equally,” said Mitch Zeller, director of the FDA’s Center for Tobacco Products.
“These flavor standards would reduce cigarette and cigar initiation and use, reduce health disparities and promote health equity by addressing a significant and disparate source of harm. Taken together, these policies will help save lives and improve the public health of our country as we confront the leading cause of preventable disease and death.”
The FDA stressed that, if implemented, enforcement of any ban on menthol cigarettes and all flavored cigars will address only manufacturers, distributors, wholesalers, importers and retailers. “The FDA cannot and will not enforce against individual consumer possession or use of menthol cigarettes or any tobacco product,” the agency stated.
Racial justice groups have expressed concern that by outlawing menthols, the FDA would set the stage for more negative interactions between law enforcement and people of color, who smoke a disproportionate share of menthol cigarettes.
Earlier this week, the National Newspaper Publishers Association (NNPA), representing more than 200 African American-owned community newspapers from around the United States, and leading Black and Hispanic law enforcement executives, too, sent a letter urging the FDA to keep menthol cigarettes legal.
In acting on menthol, the FDA granted a citizen’s petition requesting that the agency pursue rulemaking to prohibit menthol in cigarettes, affirming its commitment to proposing such a product standard.
The 2009 Tobacco Control Act (TCA) did not include menthol in its ban on characterizing flavors in cigarettes, leaving menthol cigarettes as the only flavored combusted cigarettes still marketed in the U.S. The law instructed the FDA to further consider the issue of menthol in cigarettes.
Since then, the FDA sought input from an independent advisory committee as required by the TCA, and further demonstrated its interest by issuing an Advance Notice of Proposed Rulemaking, undertaking an independent evaluation and supporting broader research efforts—all to better understand the differences between menthol and nonmenthol cigarettes and the impact of menthol on population health.
In the U.S., it is estimated that there are nearly 18.6 million current smokers of menthol cigarettes. But use of menthol cigarettes among smokers is not uniform: Out of all Black smokers, nearly 85 percent smoke menthol cigarettes compared to 30 percent of white smokers who smoke menthols. In addition, among youth, from 2011 to 2018, declines in menthol cigarette use were observed among non-Hispanic white youth but not among non-Hispanic Black or Hispanic youth.
After the 2009 statutory ban on flavors in cigarettes other than menthol, use of flavored cigars increased dramatically, suggesting that the public health goals of the flavored cigarette ban may have been undermined by continued availability of these flavored cigars, according to the FDA.
Flavored mass-produced cigars and cigarillos can closely resemble cigarettes, pose many of the same public health problems and are disproportionately popular among youth and other populations. In 2020, non-Hispanic Black high school students reported past 30-day cigar smoking at levels twice as high as their white counterparts.
Nearly 74 percent of youth aged 12 to 17 who use cigars say they smoke cigars because they come in flavors they enjoy, according to the FDA. Among youth who have ever tried a cigar, 68 percent of cigarillo users and 56 percent of filtered cigar users report that their first cigar was a flavored product. Moreover, in 2020, more young people tried a cigar every day than the number of young people who tried a cigarette.
Pamela Kaufman
Pamela Kaufman and Sanath Sudarsan of Morgan Stanley said that while the absence of a proposed rule in today’s statement was “somewhat better than the market had feared,” the FDA’s plan is likely to remain an overhang for the sector. They also noted the agency did not indicate plans to ban menthol in noncombustible products such as e-cigarettes, heat-not-burn products and nicotine pouches, which could help incentivize smokers to move away from cigarettes and toward reduced-risk alternatives.
Menthol regulation will have to follow the FDA’s multi-step/multi-year rulemaking process. The next step is a preliminary rule that would be subject to a comment and review period, typically lasting 90 days. The FDA would then review stakeholder responses and publish a final rule, which would require review from the Department of Health and Human Services and the Office of Management and Budget. Once a rule is finalized, the industry would have additional time to implement the change.
Kaufman and Sudarsan expect the tobacco industry to challenge a final rule, questioning its scientific basis and stressing the risk of creating an illicit market for menthol cigarettes.
The Biden administration is likely to announce its intention to ban menthol cigarettes tomorrow, people familiar with the plan told CBS News. Such a move would have considerable impact on the tobacco industry because menthol cigarettes account for roughly one-third of the U.S. cigarette market. Approximately 20 million Americans smoke menthols, according to the Food and Drug Administration.
Mentholated cigarettes have been marketed in the U.S. since the 1920s. Critics want to see them banned because they believe that, by masking the harshness of tobacco smoke, menthol makes it easier to start smoking and harder to quit. While overall smoking has trended downward in recent years, menthol declines have dragged behind other products. The tobacco industry insists that menthol cigarettes are no more harmful to health than nonmenthol cigarettes.
Cigarette manufacturers have also come under fire for marketing menthol cigarettes disproportionately to Black Americans, highlighting racial inequities. More than 85 percent of Black smokers report using menthol products, as do more than half of all youth who smoke, according to government data.
The 2009 Family Smoking Prevention and Tobacco Control Act empowered the FDA to regulate cigarette ingredients. The agency duly banned characterizing flavors in cigarettes. However, it exempted mentholated cigarettes, citing concerns about illicit sales, among other considerations.
In 2011, the FDA’s Tobacco Products Scientific Advisory Committee concluded that “removal of menthol cigarettes from the marketplace would benefit public health in the United States,” but the additive remained on the market. In early 2020, the Trump administration again gave menthol a pass when it banned characterizing flavors in vapor products.
While the U.S. wavered, other jurisdictions charged ahead. Brazil outlawed menthol along with all flavored cigarettes in 2012, followed by Turkey in 2015 and the European Union and the United Kingdom in 2020.
Tired of what they perceived as FDA foot-dragging, anti-smoking and racial justice groups sued the agency. The judge in the case instructed the FDA to respond to this citizens’ petition by April 29.
There is no factual basis to assert that a menthol cigarette ban will stop people of color from smoking.
Advocates of the ban say the decision about whether to move ahead is ultimately President Biden’s. Banning menthol cigarettes has Democratic support in Congress too. Senator Dick Durbin, Representative Raja Krishnamoorthi and Representative Bobby Rush recently argued that the FDA has a “duty” to ban menthols. “These failures to protect children, particularly African American children, from a path to addiction are inexcusable,” they told the administration.
If enacted, a ban would not take effect overnight. Industry analysts expect the implementation of any plan to remove menthol cigarettes from the U.S. market to take years. The FDA, which does not yet have a permanent commissioner in place, would have to go through a lengthy rulemaking process, consider potential consequences, such as illegal sales and racial injustice, and solicit public input.
“In essence, such an announcement would simply be a way to tell the public, as well as the tobacco industry, that the agency intends to ban the flavoring in cigarettes,” Pebbles Fagan, the director of the Center for the Study of Tobacco at the University of Arkansas for Medical Sciences, told NBC News. “The rulemaking process would likely take several years to finalize and implement. That would provide time to boost smoking cessation programs targeting menthol smokers.”
The American Civil Liberties Union and dozens of other criminal justice groups warned the White House and Health and Human Services Secretary Xavier Becerra that a ban on menthol cigarettes would have “serious racial justice implications.”
The National Newspaper Publishers Association (NNPA), representing more than 200 African American-owned community newspapers from around the United States, and leading Black and Hispanic law enforcement executives, too, have urged the FDA to keep menthol cigarettes legal.
“It is clear that there is no factual basis to assert that a menthol cigarette ban will stop people of color from smoking,” says Benjamin Chavis, president and CEO of the NNPA. “In fact, the unintended consequences of such a racially discriminatory ban will set the stage for more negative and more likely counterproductive interactions between law enforcement and people of color.”
Supporters of barring menthol products say that a federal ban would focus on retailers selling products and would not criminalize personal use or possession. But critics say that it could be inevitable as a black market grows for illegal cigarettes.
Biden has pledged to address racial inequities in both criminal justice and healthcare, setting up for what could be an intense balancing act with critics arguing that a ban could increase police brutality and the incarceration of Black Americans.
