In a milestone, FDA proposes ban on menthol cigarettes and flavored cigars

The proposed bans were announced by FDA commissioner Robert M. Califf in an appearance at a congressional subcommittee. He told the panel the agency had determined “that these actions are appropriate for the protection of public health” and would improve the health and “reduce the mortality risk of current smokers of menthol cigarettes or flavored cigars by substantially decreasing their consumption and increasing the likelihood of cessation.”

Assuming a federal ban is finalized, it would be the most aggressive action taken by the FDA against the industry since Congress gave the agency the authority to regulate tobacco products in 2009, said Matthew L. Myers, president of the Campaign for Tobacco-Free Kids.

“This is a giant step forward” in reducing health disparities caused by smoking, said Carol McGruder, co-chair of the African American Tobacco Control Leadership Council, an advocacy group that has pushed hard for the change. She said she expects the industry to challenge any prohibition in court, potentially resulting in years of delay, and urged states and cities to adopt their own bans.

Manufacturers sold 203.7 billion cigarettes in the United States in 2020, according to the Federal Trade Commission’s annual Cigarette Report. That was the first increase in two decades but sharply lower than the peak in the 1980s, when annual sales exceeded 600 billion cigarettes.

Menthol cigarettes make up about 36 percent of the market but 50 percent of sales for Reynolds American, which manufactures Newport, the top-selling menthol brand. Reynolds and other tobacco companies have long argued that research does not support treating menthol cigarettes differently from other cigarettes.

“We believe harm reduction, not prohibition, is the better path forward. Taking these products out of the legal marketplace will push them into unregulated, criminal markets that don’t follow any regulations and ignore minimum age laws,” Altria, another major manufacturer of cigarettes, said in a statement. The company makes menthol versions of its Marlboro and other brands.

Antismoking advocates predicted that the effective date of the bans are at least two years away. The FDA first will accept public comments and then write a final regulation that will include lead time for manufacturers to shutter production. Court challenges by the industry could set off a protracted legal battle, stalling the rule.

Thursday’s move was foreshadowed almost exactly a year ago, when the FDA promised to propose bans of menthol cigarettes and flavored cigars within 12 months.

Menthol has deep roots in Black communities. In the 1950s, about 10 percent of Black smokers used menthol cigarettes. Today, more than 85 percent of Black smokers choose menthol cigarettes — almost three times the proportion for White smokers. Researchers and regulators have found the sharp rise was a result of aggressive marketing in Black communities — especially of menthol cigarettes — by the tobacco industry. The cigarette companies deny targeting Black communities. African Americans die of tobacco-related illnesses, including cancer and heart disease, at higher rates than other groups.

The Biden administration, in proposing the menthol ban, is taking on an issue that has fueled strong emotions. While many Black health leaders and civil rights organizations support prohibiting menthol cigarettes, some prominent individuals and groups warn that a ban would turn Black smokers into law breakers and lead to potentially dangerous confrontations with police.

The Rev. Al Sharpton, who recently met with administration officials, said in a letter to the White House that a prohibition “would exacerbate existing, simmering issues around racial profiling, discrimination, and policing.” He urged the administration instead to create a commission to study the potential effects of a menthol ban on Black communities.

“We’re not opposing anything, we’re raising questions and asking them to get these answers,” Sharpton said in an interview with The Post’s Health 202 this week.

Sharpton is founder and president of the National Action Network, a nonprofit that has received financial support from Reynolds. He said in the interview that contributions don’t influence the organization’s positions.

The American Civil Liberties Union and several other groups also oppose the ban, with some citing the case of Eric Garner, a Black man who was killed in 2014 by New York police after being stopped for selling single cigarettes.

But many Black leaders, and the FDA, reject the view that a menthol ban would result in a crackdown on consumers — and accuse opponents of toeing the industry line.

“These Black leaders are all saying the same thing they have said for a decade, that a ban on menthol will lead to the criminalization of Black youth,” said Delmonte Jefferson, executive director of the Center for Black Health & Equity, a nonprofit. “They are saying, ‘Don’t ban menthol, don’t ban something that is killing us.’ ”

Derrick Johnson, president and chief executive officer of NAACP, said in a recent letter to administration officials that failing to ban menthol cigarettes would itself “be discriminatory and counter to the goal and function of the FDA to protect and promote public health for all, including the African-American community.”

The FDA has said consumers will not be in the crosshairs of the ban.

“If implemented, the FDA’s enforcement of any ban on menthol cigarettes and all flavored cigars will only address manufacturers, distributors, wholesalers, importers and retailers,” agency officials said last year in announcing plans to propose a ban.

“The FDA has no authority to enforce against possession,” said Joelle Lester, director of commercial tobacco control programs at the Public Health Law Center at Mitchell Hamline School of Law in Minnesota.

Almost all cigarette flavors were banned by the 2009 Family Smoking Prevention and Tobacco Control Act, which conferred on the FDA the authority to regulate tobacco. Menthol cigarettes were exempted partly because of opposition from the Congressional Black Caucus; many members now support a ban. The law directed the FDA to take a close look at how to handle menthol, and the expectation among health groups at the time was that the agency would move quickly to bar those cigarettes. Scientific reviews concluded removing menthol from cigarettes would provide significant public health benefits.

But the Obama administration did not move forward. The Trump administration’s first FDA commissioner, Scott Gottlieb, supported a prohibition, but the White House had little interest. In an effort to prod federal regulators, the Public Health Law Center submitted a petition in 2013 to the FDA on behalf of several health organizations to ban menthol cigarettes. Organizations sued the agency in 2020 to compel it to respond. A federal court gave officials until the end of April 2021 to announce its plans.

Studies have shown that menthol makes it easier for young people to start smoking by masking the throat irritation caused by cigarettes.

In addition, the Centers for Disease Control and Prevention and other researchers have found that tobacco companies, over the years, have used discounts and coupons — which are most popular among African Americans, other communities of color and young people — to increase sales.

The industry also had a tradition of enlisting prominent Black athletes and sponsoring sporting and cultural events to promote its wares, including menthol cigarettes — though those practices are now barred or sharply restricted.

While smoking has declined steeply in the United States, about 480,000 people a year die of tobacco-related illnesses. Massachusetts has banned all tobacco flavors, including menthol in cigarettes. California enacted a similar prohibition, but the law is on hold because opponents succeeded in placing it on the November ballot. Dozens of cities also have restricted menthol and other flavors in cigarettes and e-cigarettes.

A federal menthol ban has been “a long time coming, and it is really important because we know if we can get menthol cigarettes off the market, we can save a lot of lives,” said Robin Koval, chief executive officer and president of Truth Initiative, an anti-tobacco advocacy group.

A study to be published this week in the peer-reviewed journal Tobacco Control showed that if a menthol cigarette ban in the United States were to have the same effect as a Canadian menthol ban, more than 1.3 million additional smokers would quit, including more than 381,000 African Americans, according to Geoffrey Fong, professor of psychology and public health sciences at the University of Waterloo in Canada and lead author of the study.

The Canadian ban on menthol cigarettes was phased in between 2015 and 2017.

Rachel Roubein contributed to this report.