U.S. FDA seeks ban on menthols
Big tobacco defends the flavoured cigarettes
The Food and Drug Administration said Thursday it would seek a nationwide ban on menthol cigarettes, putting the tobacco industry into an all-too-familiar spot: having to defend the minty smokes, which are popular among younger smokers and African-Americans.
Menthol-flavored cigarettes account for nearly a third of the roughly 250 billion cigarettes sold annually in the U.S. The industry has a long history of marketing them to blacks and in minority neighborhoods. More than a dozen municipalities have adopted bans on menthols but cigarette makers have so far avoided federal restrictions.
In a broad crackdown aimed at curbing teen use of flavored tobacco products, the FDA said it is working on a rule to ban menthol-flavored cigarettes and cigars. It could take a year or more for the rule to be finalized, and another year for it to be enforceable in the marketplace. The agency also placed restrictions on the sale of flavored e-cigarettes, to be implemented over the next several months, and said it would soon direct tobacco companies to pull some flavored cigars off the market. It is working on a separate rule to ban flavored cigars entirely.
Any proposal to ban menthol cigarettes would “be subject to judicial review,” said a spokesman for Reynolds American Inc., raising the possibility of a legal battle. Reynolds makes the leading menthol brand Newport. “We believe the evidence shows that menthol does not encourage people to smoke, make smoking harder to quit or increase the risks to health compared to cigarettes without menthol,” he said.
British American Tobacco PLC has the most at stake. It spent roughly $50 billion three years ago to take full control of Reynolds American and menthols in 2016 represented about half of Reynolds’ $12.5 billion (U.S.) revenue.
Altria Group Inc. sells menthol-flavored Marlboros and Imperial Brands PLC sells the Kool and Salem brands, but those companies aren’t as reliant on menthols for overall sales. Reynolds, Altria and Imperial all said they would be engaged throughout the FDA’s yearslong rulemaking process.
“A total ban on menthol cigarettes or flavored cigars would be an extreme measure not supported by the science and evidence,” Altria said.
Menthol, a compound that occurs naturally in mint plants, has been added to cigarettes since the 1920s. It provides a cooling sensation in the mouth and throat, similar to that of a mentholated cough drop. Health officials say the effect eases the throat irritation caused by cigarette smoke, making menthols more appealing to young people.
The FDA concluded in 2013 that menthols are harder to quit and likely pose a greater health risk than regular cigarettes. But it wasn’t until last year that the FDA signaled it was actively considering a ban on menthol and other flavored tobacco products.
“Why menthol only?” said Jeff Washington, a 52-year-old New Yorker who started smoking Newports when he joined in the Army in 1983. If menthols were banned, he said, “I’d start smoking Marlboros.”
Turning to the courts is a tactic that has worked for the tobacco industry before. Several companies in 2011 successfully sued to block the FDA from mandating large graphic warning labels on cigarette packs, arguing that it was a violation of their First Amendment rights. Such package warnings are in place in many countries.
Reynolds spent $11.7 million to fight a menthol ban adopted last year in San Francisco and upheld this June in a ballot measure. It also funded black community leaders who spoke out against municipal menthol bans, including the Rev. Al Sharpton, who argued they would create an illicit market leading to racial profiling by police of blacks.
Over the decades, minorities gravitated to menthol brands such as Newport, Kool and Salem as tobacco companies ran magazine and billboard ads depicting carefree black smokers. The companies also encouraged the widely held belief that menthols were soothing and had a medicinal effect.
In the U.S., 81% of black smokers and 46% of Hispanic smokers used menthols in 2017, compared with 29% of white smokers, according to a Wall Street Journal analysis of data from the National Survey on Drug Use and Health. Some 45% of children ages 12 to 17 who smoke say they smoke menthols, according to the data. For black teens, that figure is 52%.
“Menthol is an on-ramp to smoking for kids,” FDA Commissioner Scott Gottlieb said Thursday on a call with reporters. “The burning, the coughing that comes with that first cigarette… is masked by the menthol.”
Dr. Gottlieb said he had seen firsthand as a physician the disproportionate health effects to which menthol cigarettes contribute among African-Americans and underserved communities. “It is an awful way to die,” he said.
As a step toward a potential ban, the FDA in March sought public comment on the role of menthol and other flavors in tobacco products. British American, Altria and other tobacco companies laid out their positions in submissions to the agency.
The FDA’s 2013 findings on menthol “suffered from fundamental scientific flaws,” Altria said in its July submission, adding that a ban on menthols would likely create a substantial illicit market.
The National Association of Convenience Stores says a menthol ban “will only shift those sales to the black market. Blackmarket sellers of tobacco products do not check the ages of their purchasers, do not pay taxes on their sales, and sell more than just menthol cigarettes.”
“A ban on menthol cigarettes would give police another way to interact negatively in black communities,” Rev. Sharpton wrote in an op-ed he co-wrote in May 2017. “A ban, prohibition or restriction on menthol cigarettes would mean punitive consequences.”
Rev. Sharpton didn’t respond to a request for comment.
The NAACP and the National Urban League this week said they would support a federal ban on menthols. The FDA’s plan “is long overdue to protect the health of African-Americans and to reduce the deleterious impact of menthol smoking and tobacco use overall on America’s health,” Marjorie Innocent, the NAACP’s senior director of health programs, said Wednesday.
The tobacco industry in the 1990s fought the prospect of federal regulation, but in 2000 Philip Morris Cos., the company now known as Altria, came out in favor of federal oversight. It took part in negotiations on legislation, passed in 2009, giving the FDA regulatory control of tobacco products. The law banned candy, fruit and spice flavorings in cigarettes because of their potential appeal to children, but it left unsettled the issue of menthol.
The 2009 law said the agency could prohibit menthols only if it could demonstrate that a ban was a net benefit to public health, taking into account potential unintended consequences such as an illicit market. The agency since then has been working on overcoming that hurdle.
“Why just single out one type of cigarette?” said Rasheem Chisholm, 46, of Brooklyn, who is trying to break his 20-year Newport habit. “It’s no good. Might as well just ban it all.”