(NewsNation) — The U.S. government on Thursday released its plan to ban menthol cigarettes and flavored cigars, citing the toll on Black smokers and young people.
“The proposed rules would help prevent children from becoming the next generation of smokers and help adult smokers quit,” said Health and Human Services Secretary Xavier Becerra, in a statement.
He added that the ban would also be an “important step to advance health equity” by reducing disparities in tobacco-related diseases.
Critics say the ban may lead to more police encounters of Black and Hispanic people who favor smoking menthol cigarettes.
“There are two sides to this debate,” said Julia Manchester, the national politics reporter for The Hill. “One side of the debate says that this will save lives, that it will stop people from smoking because essentially 1/3 of the cigarette market in the United States, which is menthol cigarettes, would be impacted.
“However, there is another side of this debate that says this could lead to negative interactions between police officers and members of the Black or Hispanic community which tend to favor menthol cigarettes,” Manchester added.
The Food and Drug Administration said eliminating menthol cigarettes could prevent between 300,000 and 650,000 smoking deaths over 40 years.
Menthol accounts for more than a third of cigarettes sold in the U.S, and the mint flavor is favored by Black smokers and young people. Menthol’s cooling effect has been shown to mask the throat harshness of smoking, making it easier to start and harder to quit.
The FDA said it will also seek to ban menthol and dozens of other flavors like grape and strawberry from cigars, which are increasingly popular with young people, especially Black teens.
Civil rights leaders like attorney Ben Crump and Rev. Al Sharpton have spoken out against the menthol ban saying it could lead to another Eric Garner, who was killed by police in New York after he was alleged to have been illegally selling single cigarettes, type of situation.
The FDA’s proposals on both cigarettes and cigars are only initial drafts and are unlikely to be finalized before next year. Companies would then have one additional year to phase out their products. Tobacco industry lawsuits could delay the prohibition for several more years, according to experts. For now, FDA leaders said they will take comments for two months and then proceed “as expeditiously as possible.”
Altria, which sells menthol cigarettes and flavored cigars, said it disagreed with the ban.
“Taking these products out of the legal marketplace will push them into unregulated, criminal markets,” the company said in a statement. “We will continue to engage in this long-term regulatory process.”
The FDA has attempted several times to get rid of menthol but faced pushback from Big Tobacco, members of Congress and competing political interests under both Democratic and Republican administrations.
Regulators have been under legal pressure to issue a decision after anti-smoking and civil rights groups sued the FDA for “unreasonably” delaying action on earlier requests to ban menthol.
Menthol is the only cigarette flavor that was not prohibited under the 2009 law that gave the FDA authority over tobacco products, an exemption negotiated by industry lobbyists. The act did, though, instruct the agency to continue to weigh a ban. To date, the FDA has yet to eliminate any traditional tobacco product, though it has had that authority for over a decade.
Last April, the Biden administration pledged to try to ban menthol within the year, responding in part to African American groups who say menthol has led to lower quit rates and higher rates of death among Black people. Menthols are used by 85% of Black smokers.
“Black folks die disproportionately of heart disease, lung cancer and stroke,” said Phillip Gardiner of the African American Tobacco Control Leadership Council. “Menthol cigarettes and flavored cigars are the main vectors of those diseases in the Black and brown communities, and have been for a long time.”
In 2020, Gardiner’s group and several others sued to compel the FDA to make a decision on a ban.
More than 12% of Americans smoke cigarettes, with rates roughly even between white and Black populations.
In 2019, more than 18 million Americans smoked menthol cigarettes, with higher rates among young people, African Americans and other racial groups, according to the FDA. Menthol smoking declined among white teenagers between 2011 and 2018, but not among Black and Hispanic youth, the agency noted.
Thursday’s proposals would not apply to electronic cigarettes, including leading brands like Juul and Vuse, which come in menthol. The FDA has been conducting a separate review of vaping products and has so far authorized a handful of tobacco-flavored products from smaller manufacturers.
The FDA made several efforts to begin eliminating menthol cigarettes under both the Obama and Trump administrations, but had never previously released a formal roadmap of how to accomplish the ban.
“This is the first time there’s been support from an administration,” said Mitch Zeller, who recently retired after nine years leading FDA’s tobacco center. “If these rules are finalized they become the law of the land and it becomes illegal for menthol cigarettes and flavored cigars to be sold.”
In recent weeks, dozens of interest groups — for and against the ban — met with Biden administration officials to try and influence the proposed rules, which would wipe out billions in tobacco sales. Conservative and civil rights groups that accept tobacco funding warned officials that banning could menthol could result in increased policing in Black communities.
While acknowledging those concerns, FDA Commissioner Robert Califf stressed that the agency’s rules would target companies, not smokers.
“These measures and related enforcement would be on the tobacco industry, not individuals who possess or use these products,” Califf told reporters.
For decades, tobacco companies focused menthol advertising and promotions in Black communities, sponsoring music festivals and neighborhood events. Industry documents released via litigation show companies viewed menthol cigarettes as a good “starter product” because they were more palatable to teens.
Menthol’s elimination would be a huge blow to tobacco companies, including Reynolds American, which sells the leading menthol brands, Newport and Kool. With the slow decline of smoking, tobacco companies have been diversifying into alternative products, including electronic cigarettes and tobacco pouches. But those ventures still account for a tiny slice of industry sales.