The Food and Drug Administration revealed a regulatory plan Thursday for banning the sale of menthol cigarettes and cigars, though the changes are not likely to take effect for years.
The agency’s proposed rules, which could be finalized as soon as 2023, with the ban set to take effect a year thereafter, mark a major step toward fulfilling a Biden administration goal set over a year ago. The administration called for banning menthol cigarettes in response to pressure from civil rights groups to crack down on the tobacco industry’s aggressive marketing to black people.
“Through careful consideration of the scientific evidence and our authorities under the Tobacco Control Act, we’ve determined that these actions are appropriate for the protection of the public health,” FDA Commissioner Robert Califf said on Thursday.
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Menthol products overall are less popular than other types of cigarettes, with 2018 data showing that slightly fewer than 40% of current smokers prefer menthol. However, 85% of all black smokers reported preferring menthol, which civil rights advocates such as the NAACP attribute to the “predatory” marketing tactics used by Big Tobacco companies.
“The proposed product standards would, among other things, 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,” Califf said.
The impending ban is not uniformly appreciated. Recent polling in Georgia, Nevada, and North Carolina, states that all have Senate races coming up in the fall, showed that the Biden administration’s intent to ban the products is opposed by between 50% and 52% of voters in the three states, while only 28% to 31% support it.
Meanwhile, some black civil rights advocates are concerned that the ban will spur the illegal trafficking of menthol tobacco products and possibly fatal confrontations with police. Rev. Al Sharpton, for instance, implored Domestic Policy Council Director Susan Rice to back off a ban, saying that it would “exacerbate existing, simmering issues around racial profiling, discrimination, and policing.”
The FDA acknowledged concerns that the ban would open up an illicit market for the products, increasing friction between law enforcement and black people. The agency said in its announcement Thursday that “the FDA cannot and will not enforce against individual consumers for possession or use of menthol cigarettes or flavored cigars.” Beginning next month, the public will be able to submit comments on the proposed rule change, which the agency expects will pertain to the question of how the agency can effectively implement the ban without jeopardizing safety, particularly for black people.
“Through the rulemaking process, there’s an important opportunity for the public to make their voices heard and help shape the FDA’s ongoing efforts to improve public health,” Califf said.
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The FDA’s move to ban menthol cigarettes and cigars marks the agency’s biggest step toward regulating aspects of Big Tobacco since 2009, when then-President Barack Obama signed legislation giving the agency authority over the way tobacco products are made and marketed.
During former President Donald Trump’s time in office, then-FDA Commissioner Scott Gottlieb advanced the administration’s initiative to ban menthols alongside his crusade against flavored e-cigarette products, which attract young people. However, that plan was shelved by the administration after Gottlieb left in 2019.
