FDA moves to ban menthol cigarettes, flavored tobacco products

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The Food and Drug Administration (FDA) has moved to ban menthol cigarettes and other flavored tobacco products in a decision that Health and Human Services Secretary Xavier Becerra said reflects the Biden administration’s "commitment to improve the health of all Americans and to tackle health disparities in our most marginalized communities."

The FDA had faced a Thursday deadline to respond to a 2013 citizen petition to act on menthol products, which escalated to a court filing in June 2020. The FDA's actions are not expected to translate into an immediate ban on such products. 

"The FDA is working toward issuing 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; the authority to adopt product standards is one of the most powerful tobacco regulatory tools Congress gave the agency," the FDA said in a news release posted Thursday. "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." 

ACLU WARNS BIDEN ADMINISTRATION AGAINST MENTHOL BAN

Acting FDA commissioner Dr. Janet Woodcock said the actions "represent powerful, science-based approaches that will have an extraordinary public health impact." 

The agency said it has strong evidence that enacting a menthol ban will help people quit, as it masks unpleasant flavors and harshness of tobacco products which can make it easier to start using. The news release cited a study that suggests banning menthol cigarettes would lead to an additional 923,000 smokers quitting, including 230,000 Black Americans in the first 13 to 17 months after a ban goes into effect. 

The tobacco industry has long been accused of aggressively marketing menthol products to young people and Black communities. According to the Centers for Disease Control and Prevention (CDC), over 7 out of 10 Black youths ages 12-17 who reported smoking use menthol cigarettes, and Black adults have the highest percentage of menthol cigarette use compared to other racial groups. 

Proponents of the ban believe menthol cigarettes to be a social justice issue, but critics, such as the ACLU, say banning such products could lead to an underground market for such products, and more opportunity for criminal activity. 

In a letter sent to Biden administration officials ahead of the FDA's Thursday deadline, the ACLU and dozens of others including the Drug Policy Alliance said while such a ban "no doubt is well-intentioned," it would have "serious racial justice implications." 

"Such a ban will trigger criminal penalities, 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 law enforcement." 

The letter referenced the recent police-involved deaths of George Floyd, Daunte Wright, Ma'Khia Bryant and Eric Garner. 

"A number of police encounters resulting in tragic deaths are linked to police enforcement of tobacco laws: Eric Garner, killed by a police chokehold, was illegally selling ‘loosie’ cigarettes, and Michael Brown was killed after being suspected of stealing a box of cigarillos," the letter stated. "Even in the case of George Floyd, police were called to investigate a counterfeit bill used to purchase cigarettes."

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However, Becerra, and others proponents, said the proposed rule changes were created with the goal of tackling health disparities in "our most marginalized communities." 

"This science-based decision reflects the Biden administration’s commitment to improve the health of all Americans and to tackle health disparities in our most marginalized communities," Becerra said. "Tobacco-related death and disease must become a part of America’s past. These public health measures will save lives."

In a call regarding the FDA's decision, the director of the FDA's Center for Tobacco Products, Mitch Zeller, noted that if the proposed rules are implemented, the FDA enforcement would only apply to manufacturers, distributors and retailers. 

Zeller noted that state and local law enforcement do not enforce the Food, Drug and Cosmetic Act "and so could not enforce a ban." He added the FDA "cannot and will not" enforce against individual consumer possession.