Citing need for “more conversations” on menthol, White House scuttles move to ban the flavor favored by Black smokers
The Biden administration has—for the second time—delayed the decision on a proposed FDA rule that would ban menthol cigarettes and all flavors in cigars.
This time, the White House decision not to bar the tobacco products favored by Black smokers is indefinite.
“This rule has garnered historic attention, and the public comment period has yielded an immense amount of feedback, including from various elements of the civil rights and criminal justice movement. It’s clear that there are still more conversations to have, and that will take significantly more time,” Xavier Becerra, Secretary of Health and Human Services, said in an April 26 statement.
Anti-smoking advocates, who have spent years trying to implement menthol regulations, say the ban has solid scientific underpinnings, the support of leading public health experts—and is long overdue.
“It seems like those conversations have been happening for over 10 years,” said attorney Christopher Leung, lead counsel in a lawsuit against FDA over the long-delayed decision. “It’s really time to wrap it up.”
FDA first published the proposed menthol rule in April 2022 as part of the Biden administration’s reignited Cancer Moonshot that aims to lower the death rate from cancer by at least 50% over the next 25 years (The Cancer Letter, April 29, 2022).
The rule garnered overwhelming support from public health advocates, including Black cancer policymakers and directors of NCI-designated cancer centers. Although menthol-labeled cigarettes comprise about 30% of packs on the U.S. market—and white smokers use them at a proportional rate—more than 80% of Black smokers prefer the soothing minty variety, according to CDC.
Nearly 160,000 Black Americans are estimated to have died prematurely from 1980 to 2018 because of menthol cigarettes.
While the science on menthol and other flavorings in tobacco products is clear, the politics gets tricky fast.
The approval of the menthol rule must come from the White House Office of Management and Budget. OMB received FDA’s final version of the cigarette and cigar guidelines in October 2023 and was set to decide their fate last December. That deadline was pushed to March 2024—and missed, prompting the lawsuit that Leung is working on (The Cancer Letter, April 5, 2024).
The White House decision to delay the ban indefinitely comes as a crushing blow to the advocates.
“This was an opportunity to save a lot of lives,” said Otis W. Brawley, the Bloomberg Distinguished Professor of Oncology and Epidemiology at Johns Hopkins University. “There are a whole bunch of people who are going to die and who are dying because of addiction to menthol.”
Menthol masks cigarettes’ harsh effects
Menthol eases the harshness of smoking by creating a cooling sensation in the throat. The anesthetic agent also allows users to inhale the smoke more deeply into their lungs, Brawley said.
Even unflavored cigarettes commonly contain trace amounts of the soothing substance, he said.
First-time smokers—most often adolescents and young adults—are more likely to try menthol cigarettes than the unflavored variety. And those who start smoking with menthol cigarettes continue the habit more often than those who try other cigarettes, studies show.
Research also indicates that menthol enhances nicotine’s effects on the brain, which can make the tobacco products more addictive and harder to quit.
“Flavored tobacco, including menthol cigarettes, leads to a lifetime of smoking,” said Karen E. Knudsen, CEO of the American Cancer Society and the ACS Cancer Action Network. “This is a gateway to the use of additional tobacco products.”
To reduce cigarettes’ appeal, most flavors—including fruit, candy, and clove—were banned from the market in 2009 through the Family Smoking Prevention and Tobacco Control Act.
But that law specifically excluded menthol (The Cancer Letter, Sept. 25, 2009).
FDA’s latest proposed rule aims to close the loophole. Yet the Biden administration’s suspension of a decision on its promulgation was likely an attempt to retain Black voters during this year’s presidential election, Brawley and other observers said.
Experts say the hesitancy also comes from a fear that the ban will affect individuals in possession of menthol cigarettes.
For instance, in 2014, Eric Garner—a Black man—was approached by New York City police on suspicion of illegally selling single cigarettes. An officer held him in a prohibited chokehold and killed him, leading to the “I can’t breathe” slogan associated with the Black Lives Matter movement.
Some Black civil rights leaders, notably the Rev. Al Sharpton and Garner’s mother, have been arguing that prohibiting menthol cigarettes will lead to a black market for them and cause more unjust targeting of Black individuals by police.
“The link between menthol and over-policing is, of course, utterly nonsensical,” Brawley said in an editorial (The Cancer Letter, Jan. 29, 2024).
FDA’s proposed rule states that the agency “cannot and will not enforce against individual consumers for possession or use of menthol cigarettes or flavored cigars.”
Statewide menthol bans in Massachusetts, since 2020, and California, since 2022, suggest that individuals would indeed be spared, Knudsen said.
Furthermore, the estimated number of smokers in Massachusetts declined by about 8% after the state outlawed menthol cigarettes, according to a 2023 study in JAMA Internal Medicine. And in 2017, Canada enacted a menthol ban, which also led to a rapid decline in smoking—particularly among menthol cigarette users, as described in a 2023 Tobacco Control study.
“The people weren’t really attracted to the tobacco as much as they were to the menthol,” said Robert A. Winn, director and Lipman Chair in Oncology at the Virginia Commonwealth University Massey Comprehensive Cancer Center. “I think that there’s a scientific and a public health stand to be able to ban menthol. However, I understand that there are obviously some complicated social issues that honestly should be able to be worked out.”
But racializing the menthol issue has now jeopardized legislation to remove the additive from the cigarette market, Winn said. “We live in an interesting place where just because it’s right doesn’t mean it’s going to happen.”
Media convinced people to smoke—could it sway them to stop?
Tobacco companies have a history of funding civil rights organizations.
“The rise of the civil rights movement [in the 1950s] led the tobacco industry to advertise heavily in the Black press, and menthol brands were the ones most advertised,” Alan Blum, professor and Gerald Leon Wallace Endowed Chair in Family Medicine at the University of Alabama School of Medicine and director of the UA Center for the Study of Tobacco and Society, said in an editorial (The Cancer Letter, May 7, 2021).
Those targeted ads, which continued for decades, and the lack of anti-tobacco articles in the Black press led to the huge proportion of Black smokers who prefer menthol cigarettes today.
“It wasn’t that African Americans chose to go to menthol,” Blum said. “It was basically marketing.”
While Blum supports the menthol ban because those cigarettes have been preferentially marketed in Black communities, he doesn’t believe that prohibitive legislative measures are the most effective way to convince people to stop smoking.
For instance, the approach has caused tobacco companies to attempt to skirt the menthol bans through new cigarette additives that mimic menthol. Whether the strategy provides a loophole in the proposed FDA rule remains unclear, although California has warned that such menthol-like flavors violate the state’s restrictions.
Anti-smoking advocates should take a note from the tobacco industry’s early strategies—and turn to mass media and humor, Blum said.
“We haven’t ridiculed cigarette smoking as we should have been doing all these years,” he said.
In 1988, for example, Blum and his colleagues created the Barfboro Barfing Team as a spoof on the Marlboro Adventure Team campaign, which had begun a few years earlier and encouraged young adults to smoke Marlboros through exclusive merchandise and chances to win trips.
To fight back with humor, Barfboro toured several states in a decked-out van, handing out merchandise for joining the Barfing Team.
Blum has been disappointed to see regulatory actions become the main strategy to stop and prevent smoking over the years.
“We could’ve laughed these [tobacco] pushers out of town, but we took ourselves way too seriously,” he said.
