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The Food and Drug Administration on Thursday proposed banning menthol cigarettes, a significant move praised by leading health and civil rights groups, who say the tobacco industry has a history of aggressively marketing to black communities and causing severe harm, including higher rates of smoking-related illness and death.
The FDA also proposed banning flavorings in cigars, including small cigarillos popular with teenagers.
FDA Commissioner Robert M. Califf told reporters a ban on menthol cigarettes and flavored cigars would save lives and reduce health disparities. He expressed the urgency of finally enacting the rule and stressed that 480,000 people die each year in the United States from tobacco-related diseases, making smoking the leading cause of preventable deaths.
Still, the effective date of the ban could easily be two years away. The FDA will be taking public comments over the next few months and will then issue a final rule that will include the lead time for manufacturers to produce shutters. Industry lawsuits are expected and could result in a protracted litigation.
Assuming a federal ban is completed, it would be the FDA’s most aggressive action 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 kid .
“This is a huge step forward” in reducing health disparities, said Carol McGruder, co-chair of the African American Tobacco Control Leadership Council, an advocacy group that has campaigned heavily for the change. Because of potential litigation-related delays, she urged states and cities to enact their own bans.
According to the Federal Trade Commission’s annual Cigarette Report, manufacturers sold 203.7 billion cigarettes in the United States in 2020. This was the first increase in two decades, but was well below the peak in the 1980s when annual sales topped 600 billion cigarettes. Menthol cigarettes account for about 36 percent of the market — and 50 percent of sales by Reynolds American Inc., which makes Newport, the top-selling menthol brand.
Tobacco companies, which have long opposed a menthol ban, said a ban is unlikely to work and menthol cigarettes shouldn’t be singled out.
“The scientific evidence shows no difference in the health risks associated with menthol cigarettes compared to non-menthol cigarettes, nor does it support that menthol cigarettes adversely affect initiation, dependence or cessation,” said Kingsley Wheaton, British American Tobacco’s chief marketing officer Reynolds said in a statement.
Altria, which makes mentholated versions of Marlboro and its other brands, warned that “removing these products from the legal market will push them into unregulated, criminal markets that don’t comply with regulations and ignore minimum age laws.”
Guy Bentley, director of consumer freedom at the Reason Foundation, said on Twitter: “Serious Volstead Act Vibes here,” referring to the 1920 Act implementing Prohibition that did not end the sale of alcohol. The Reason Foundation is a think tank championing libertarian principles.
Thursday’s move was hinted at almost exactly a year ago, when The FDA pledged to propose a ban on 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 opt for menthol cigarettes – nearly three times that of white smokers. Researchers and regulators have found that the sharp rise is due to aggressive marketing in black communities – particularly of menthol cigarettes – by the tobacco industry. Cigarette companies deny targeting black communities. African Americans are more likely to die from tobacco-related diseases, including cancer and heart disease, than other groups.
With its proposal for a menthol ban, the Biden administration is addressing an issue that has fueled strong emotions. While many black health leaders and civil rights organizations support banning menthol cigarettes, some prominent individuals and groups warn that a ban would turn black smokers into lawbreakers and lead to potentially dangerous confrontations with police.
Rev. Al Sharpton, who recently met with administration officials, said in a letter to the White House that a ban “would exacerbate existing, simmering problems related to racial profiling, discrimination and policing.” He instead called on the government to set up a commission to study the potential impact of a menthol ban on black communities.
“We don’t resist anything, we ask questions and ask them to get those answers,” Sharpton said in an interview with The Post’s Health 202 this week.
Sharpton is the founder and president of the National Action Network, a nonprofit organization that has received financial support from Reynolds. He said in the interview that contributions do not affect the organization’s positions.
The American Civil Liberties Union and several other groups are also opposed to the ban, with some quote the case of Eric Garner, a black man who was killed by New York police in 2014 after being pulled over for selling individual cigarettes.
But many black leaders and the FDA, reject the view that a menthol ban would lead to a crackdown on consumers – and accuse opponents of following the industry line.
“These black leaders are all saying what they’ve been saying for a decade, that banning menthol will criminalize black youth,” said Delmonte Jefferson, executive director of the Center for Black Health & Equity, a nonprofit organization. “They say, ‘Don’t ban menthol, don’t ban anything that’s killing us.’ ”
Derrick Johnson, President and Chief Executive Officer of the NAACP, said in a statement Thursday that “the targeting and marketing of menthol flavors by the tobacco industry has had a devastating impact on our community. …Today is a great win for justice, equity and the concerns of public health.”
The FDA said Thursday consumers would not be in the crosshairs of a ban because the proposal would not prevent individuals from owning or using menthol cigarettes or flavored cigars. Instead, enforcement would focus on manufacturers, distributors and retailers.
The FDA said it would accept comments from the public between May 4 and July 5. She will also hold two “listening sessions” in June. The ban does not affect menthol-flavored e-cigarettes, which the agency is still reviewing.
Almost all cigarette flavors were banned by the Family Smoking Prevention and Tobacco Control Act of 2009, which gave the FDA the power to regulate tobacco. Menthol cigarettes were exempted in part due to opposition from the Congressional Black Caucus; Many members now support a ban. The law directed the FDA to scrutinize how menthol was handled, and health groups at the time expected the agency to act quickly to ban these cigarettes. Scientific research concluded that removing menthol from cigarettes would bring significant public health benefits.
But the Obama administration made no progress. The Public Health Law Center at the Mitchell Hamline School of Law in Minnesota tried to get federal authorities to ban menthol cigarettes by petitioning the FDA in 2013 on behalf of several health organizations. The Trump administration’s first FDA commissioner, Scott Gottlieb, supported a ban, but after he left the agency in 2019, the White House didn’t comply. Organizations sued the agency in 2020 to force it to respond to the petition, prompting a federal judge to give the administration until last April to announce its intentions.
Studies have shown that menthol, which tastes like mint and provides a cooling sensation, helps young people start smoking by masking cigarette-induced throat irritation.
The Centers for Disease Control and Prevention and other researchers have found that over the years, tobacco companies have used rebates and coupons — which are most popular with African Americans, other black communities, 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 — although these practices are now banned or severely restricted.
Some states and cities have moved to ban menthol and other flavorings. Massachusetts has banned all tobacco flavors, including menthol, in cigarettes. California issued a similar ban, but the law is on hold because opponents managed to put it on November’s election. Dozens of cities have also restricted menthol and other flavorings in cigarettes and e-cigarettes.
In 2019, more than 18.5 million people aged 12 and over smoked menthol cigarettes, according to the FDA. The agency said fruit flavors have made cigars particularly appealing to young people. Under the proposed ban, cigars could only be tobacco-flavored.
A federal menthol ban “has been a long time coming, and it’s really important because we know that if we 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 published this week in the peer-reviewed journal Tobacco Control showed that if a menthol ban in the United States had 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, a professor of psychology and public health at the University of Waterloo in Canada and the study’s lead author.
Canada’s menthol cigarette ban was phased in between 2015 and 2017.
Rachel Roubein contributed to this report.