Why Could Menthols Be Banned, but Not Regular Cigarettes?

Illustration for article titled Why Could Menthols Be Banned, but Not Regular Cigarettes?
Image: Joe Raedle (Getty Images)

The U.S. Food and Drug Administration said Thursday that it would begin the process of trying to ban menthol-flavored cigarettes and flavored cigars from the market. The decision will likely meet fierce opposition from many corners and may not come into effect for years. But it brings up an interesting question: Why is it that menthol cigarettes would be banned, but not cigarettes as a whole?

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The FDA’s announcement calls for “introducing proposed product standards within the next year to ban menthol as a characterizing flavor in cigarettes and ban all characterizing flavors (including menthol) in cigars.” In justifying its decision, the agency notes that its “authority to adopt product standards is one of the most powerful tobacco regulatory tools Congress gave the agency.”

The authority being referenced there comes from the “Family Smoking Prevention and Tobacco Control Act” that was signed into law by President Barack Obama in 2009. The act was itself a response to a 2000 Supreme Court decision that ruled the FDA hadn’t been given the power by Congress to broadly regulate the tobacco industry.

The Tobacco Control Act provided specific provisions on how the FDA could try to limit the industry. This didn’t include the ability to wholly ban cigarettes, but it did allow the FDA to enforce the inclusion of clear warning labels on products, to create restrictions on marketing and new cigarette product approvals, and to ban nearly all cigarette flavors—with the noticeable exception of menthol. Many of these regulations, particularly the flavor ban, were meant to discourage cigarette use among teens.

Even at the time, at least some tobacco control advocates were disappointed about the lack of menthol ban, and in the years since, there’s been a concerted effort pushing for the end of this loophole. Advocates and some public health experts have noted that menthol cigarettes, while widely popular, are especially used by Black Americans and young people. Research has found as much as 90% of Black smokers started their habit with menthol, compared to less than half of white smokers. Other studies have also suggested menthol cigarettes raise the risk of younger adults ramping up their tobacco use over time, compared to non-menthol cigarettes. And a study this February estimated that menthol cigarettes have contributed to nearly 380,000 premature deaths in the U.S. between 1980 and 2018, while also slowing down the steady decline of youth smoking.

The industry at large has long pushed back against a menthol ban, but they’re not the only ones opposing the move. At least some public health and civil rights organizations have argued that a ban is too abrasive a measure to discourage tobacco use, one that could negatively affect the very same people it’s trying to help. These harms could involve users switching to unregulated and more dangerous products or increased encounters with law enforcement trying to crack down on these products.

On Monday, several organizations, including the ACLU and the Drug Policy Alliance, jointly signed an open letter sent to the FDA and the U.S. Department of Health and Human Services, arguing as much.

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“Such a ban will trigger criminal penalties, which will disproportionately impact people of color, as well as prioritize criminalization over public health and harm reduction,” the letter stated. “A ban will also lead to unconstitutional policing and other negative interactions with local law enforcement.”

The FDA, in its announcement, pledged that any future menthol ban it pushes through will not target the people who smoke menthols and that it would try to curtail any potential black market that could arise.

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“The FDA cannot and will not enforce against individual consumer possession or use of menthol cigarettes or any tobacco product. The FDA will work to make sure that any unlawful tobacco products do not make their way onto the market,” the agency said.

Whatever ends up happening, it won’t be soon. The proposed rule-making process can take years, and it’s possible that legal challenges may drag it along further. But if successful, it wouldn’t be the first ban on menthol cigarettes: Massachusetts already enacted its own ban in 2019, while most of Canada enacted a ban in 2016—a ban that some evidence suggests has led to more smokers quitting.

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