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Menthol Cigarettes, Cigars Face U.S. Ban in FDA Proposals

Menthol Cigarettes, Cigars Face U.S. Ban in FDA Proposals

Menthol cigarettes and cigars would be banned from sale under two proposed rules released Thursday, marking a long-awaited step in the FDA’s efforts to address tobacco-related health disparities.

The Food and Drug Administration issued new product standards targeting menthol and other flavored tobacco products that can make smoking harder to quit, especially among youth. These products are often disproportionately used by Black Americans and other minority groups.

“We need a care package to help them quit. People don’t realize that the addictiveness of nicotine ranks right up there with opioids,” FDA Commissioner Robert Califf said Thursday at a hearing.

The first proposed rule (RIN 0910-AI60) would prohibit tobacco manufacturers and retailers from making, distributing, and selling cigarettes containing menthol as a flavor. The second (RIN 0910-AI28) would ban all characterizing flavors, including menthol, in cigars. Both need to be finalized after a public comment period.

The move is a potential boon for public health if it causes menthol smokers to quit or deters people from taking up cigarettes in the first place. It’s also a blow to cigarette makers that are already struggling with declining sales, as well as governments that rely on tax income from cigarettes.

Around 37% of cigarettes sold in 2020 were menthol, up from 34% in 2015, according to data from the Federal Trade Commission. Companies that would be hurt by a menthol ban include Altria Group Inc., Imperial Brands Plc, which makes Kool cigarettes, and British American Tobacco Plc.

“Tobacco use is the leading preventable cause of death and disease in the United States. Menthol’s flavor and sensory effects increase appeal and make menthol cigarettes easier to use, particularly among youth and young adults,” the FDA said in the proposed rule for cigarettes.

The agency said the product standard for cigars would “reduce the appeal” particularly for young adults and “thereby decrease the likelihood of experimentation, development of nicotine dependence, and progression to regular use.”

Long-Awaited Plan

In April 2021, the agency announced that it would pursue the menthol bans as part of its efforts to reduce disease and death caused by combusted tobacco product use. Menthol flavoring gives cigarettes a minty taste and soothes the throat, but the FDA has warned that it can also make smoking more addictive and appealing.

The FDA has previously said that it wouldn’t impose penalties on individual consumers who possess or use menthol-containing products, while still ensuring that no new unlawful cigarette or cigar products are added to the market.

Anti-tobacco groups, like the Campaign for Tobacco-Free Kids, applauded the FDA on its plans, but cigarette makers have pushed back. Altria has argued that smokers will keep using regular cigarettes or move to black-market products if there aren’t enough desirable alternatives to menthol available.

When finalized, the cigarette menthol ban “will be the single most significant action that the FDA has taken on tobacco,” Erika Sward, assistant vice president of national advocacy at the American Lung Association, said.

Health Equity

Nearly 85% of all non-Hispanic Black smokers report using menthol cigarettes, compared with just 30% of non-Hispanic White smokers, according to the FDA. The agency has also said that in 2020, the 30-day cigar smoking levels for non-Hispanic Black high school students were twice as high as White students.

“For decades the tobacco industry has deliberately targeted Black communities with marketing for menthol cigarettes, with tragic consequences. The industry also uses these flavored products to lure kids into a deadly addiction,” said Matthew Myers, president of the Campaign for Tobacco-Free Kids.

“These rules will, once and for all, put an end to these predatory and deadly practices,” Myers said in a statement.

The FDA has been reviewing the use of menthol in cigarettes since the passage of the 2009 Tobacco Control Act, which banned characterizing flavors in cigarettes but didn’t include menthol. That law helped to fuel a sharp increase in flavored cigar use, especially among youth and racial minority populations, according to the FDA.

Flavored cigars “were marketed as a starter product, particularly in black communities,” Sward said.

“For far too long, specific populations have been targeted and disproportionately impacted by tobacco use, especially when it comes to characterizing flavors that entice them to start and keep smoking,” then-Center for Tobacco Products Director Mitch Zeller, who retired earlier this month, said in a January statement.

Market Issues

Not everyone however is praising the FDA’s move.

Tim Andrews, Americans for Tax Reform’s director of consumer issues, called the FDA’s proposal “misguided,” noting it “will have disastrous impacts on public health and public safety” while failing to curb smoking.

“If the FDA were serious about reducing smoking rates, they would accept the science and follow the recommendation of over 100 of the world’s leading medical bodies to embrace reduced risk tobacco alternatives, such as e-cigarettes, which have been proven 95% safer than combustible cigarettes,” Andrews said in a statement.

“This proposed rulemaking will inevitably lead to further growth of illicit markets, put members of minority communities in danger, and divert law enforcement resources away from real crime,” he added.

The FDA is currently reviewing vape products that are already on the market, and deciding whether they are appropriate for the protection of public health and can remain on shelves. It’s highly-anticipated decision on products made by Juul Labs Inc. is expected at any time.

A federal menthol ban may cost the U.S. government $6.6 billion in lost excise taxes, which can represent up to 40% of the cigarettes’ retail price, according to a March report from the Tax Foundation, a nonprofit that focuses on tax policy.

That potential loss is still just a fraction of what the government might save if the menthol ban leads to fewer smokers, however. The Centers for Disease Control and Prevention estimates that smoking-related illnesses cost the U.S. more than $300 billion a year, including $5.6 billion alone due to second-hand smoke exposure.

Michael R. Bloomberg has campaigned and given money in support of a ban on flavored e-cigarettes and tobacco. He is the majority owner of Bloomberg LP, the parent company of Bloomberg News.

To contact the reporters on this story: Ian Lopez in Washington at ilopez@bloomberglaw.com; Jeannie Baumann in Washington at jbaumann@bloombergindustry.com; Celine Castronuovo at ccastronuovo@bloombergindustry.com; Tiffany Kary in New York at tkary@bloomberg.net

To contact the editors responsible for this story: Alexis Kramer at akramer@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com

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