Ban on Menthol Cigarettes Could Be Delayed into 2024 | January 2024

January 2024 | Volume 15, Issue 6

Read the full article on NBC News.

According to the article, the long-awaited ban on menthol cigarettes may not be announced by the end of the year, but pushed to 2024, according to officials from two national public health groups working to remove the products from the market.

Both requested anonymity to discuss the decision ahead of any announcement from the Biden administration. The delay could be announced as early as next week, they suggested.

Officials from the public health groups worry that the ban may be punted well into next year, perhaps even after the November presidential election.

One of the officials was “deeply concerned” that the ban would not be put into place before the 2024 election.

“Everything gets harder to do in an election year because people are distracted and bandwidth is stretched,” the official said.

The White House declined to comment.

A ban on menthol cigarettes has been in the works for more than a decade. A 2013 citizen petition prompted the Food and Drug Administration to ban menthol as a flavor in cigarettes, but rules to finalize a ban have been sluggish.

In January, Brian King, the director of the FDA’s Center for Tobacco Products, said the agency was committed to completing the rulemaking process for the ban in 2023. The FDA went on to miss its own self-imposed deadline of August.

Menthol use predominantly affects people of color.

Nearly 85 percent of Black smokers use menthols, compared to 30 percent of white smokers, according to the FDA. Black men and women are far less likely than white Americans to be diagnosed with lung cancer at an earlier stage, when the disease is often more treatable. Black men have the highest lung cancer death rate in the U.S.

Public health groups such as the American Lung Association and the American Heart Association have been vocal about the need for an end to menthol tobacco products.

“The American Lung Association expects the White House to honor President Biden’s commitment to end cancer as we know it through the Cancer Moonshot,” said Erika Sward, assistant vice president for national advocacy at the American Lung Association. It “cannot be achieved unless the White House finalizes” rules banning menthol products.

“Removing these products from the market is backed by strong scientific evidence and hundreds of thousands of public comments from the public health community nationwide,” said Nancy Brown, chief executive officer for the American Heart Association. “The administration should not delay further in putting these rules into effect.”

The Food and Drug Administration said that finalizing rules to ban menthol tobacco products “remains a top priority.”

“Final rules such as these go through an extensive rulemaking process, including agency review and consideration of public comments, development of the final rule, and subsequent review by the Department of Health and Human Services and the White House Office of Management and Budget,” an FDA spokesperson said. The OMB has posted the final rules, which is considered the last step before the bans are finalized.

The Biden administration has been conducting ongoing meetings to discuss the issue with the tobacco industry and public health groups.

Menthol cigarettes are notoriously addictive. When inhaled, the menthol produces a cooling sensation in the throat, reducing the irritation of nicotine and the harsh taste of cigarettes, essentially making the cigarettes easier to smoke.

Menthols are also difficult to quit. Menthol smokers successfully quit at lower rates than nonmenthol smokers, according to the Centers for Disease Control and Prevention.

“People are dying. This will save lives. We have the science and data to prove it,” one official said. “It is long past time to take these products off the market.”

Note: For an update regarding the Biden administration’s proposed menthol cigarette ban, please review Biden Administration Delays Ban on Menthol Cigarettes.

According to the article, the Biden administration has once again delayed banning menthol cigarettes, infuriating officials of public health groups who say the products are responsible for taking hundreds of thousands of American lives.

Recently, the White House quietly updated its Office of Information and Regulatory Affairs website to reflect that any final ban on menthol will not take place until at least March 2024. Even then, it is expected to take years for menthol products to be off store shelves. The ban was previously supposed to take effect by the end of December.

“These Products Kill”

"It's heartbreaking," said Emily Holubowich, the American Heart Association's national senior vice president of federal advocacy. "We know these products kill."

The AHA and other public health organizations, such as the American Lung Association and the Campaign for Tobacco-Free Kids, have been pushing to ban menthol tobacco products for well over a decade.

"If not now, when?" Holubowich said.

Although the Food and Drug Administration would enact the ban, the move to delay it is in the hands of the Biden administration. The White House declined to comment on the delay.

"It is incredibly frustrating as a person who is dedicated to public health and to health equity to see something like this continually be delayed," said Dr. Avenel Joseph, the vice president of policy at the Robert Wood Johnson Foundation.

Public health officials worry that there will not be bandwidth to push for the ban in an election year, as other political issues take center stage.

"In an election year, policymaking tends to grind to a halt," Holubowich said. "People are distracted. They're out campaigning."

The Problem with Menthols

The tobacco industry has fought a menthol ban, suggesting it would force consumers to "turn to the illicit market."

A "rise in illicit trade will result in increased prosecutions, arrests, and negative law enforcement interactions, particularly in communities of color where menthol smoking is most prevalent," a spokesperson for R.J. Reynolds Tobacco Co. said in a statement.

Public health experts immediately dismissed the argument as an issue separate from public health.

"The first step is to follow public health evidence" to ban sales of menthol products, Joseph said.

"Then we can deal with appropriate enforcement responses and mechanisms needed to be sure that we’re not unduly targeting Black communities."

"If we prohibited the sale of menthol cigarettes, it would literally be a game changer for public health," she said.

When it is added to tobacco products, menthol flavoring produces a cooling sensation in the throat. That reduces the harsh taste and irritation of cigarette smoke, essentially making it easier to start smoking and more difficult to stop, experts say.

People who smoke menthol cigarettes are less likely than nonmenthol smokers to quit successfully, according to the Centers for Disease Control and Prevention.

Black Americans Are Affected Most

Black Americans are affected most. Nearly 85 percent of Black smokers use menthols, compared to 30 percent of white smokers, according to the FDA.

"Largely because of menthol cigarettes, Black Americans have a harder time quitting smoking and die at higher rates from tobacco-related diseases like cancer, heart disease and stroke," Yolonda Richardson, the president and CEO of the Campaign for Tobacco-Free Kids, said in a statement. "Research shows that prohibiting menthol cigarettes will save up to 654,000 lives within 40 years, including the lives of 255,000 Black Americans."

Black men have the highest lung cancer death rate in the U.S. According to the CDC, 157,000 African Americans died prematurely because of menthol cigarettes from 1980 to 2018.

“This Delay Is Atrocious”

The issue is the Number 1 health problem facing Dr. David Margolius, who heads the Department of Public Health for Cleveland. The city has one of the highest smoking rates in the country, at 35 percent of adults, he said.

"This delay is atrocious. The longer that we wait, the harder it's going to be to end the sale of menthol cigarettes," Margolius said. "Any delay will result in more people dying in this country."

Discussion Questions

1. As the article indicates, according to the FDA, nearly 85 percent of Black smokers use menthol cigarettes (according to the article, menthol in cigarettes makes it easier to start smoking and more difficult to stop) compared to 30 percent of white smokers. Further, Black men and women are far less likely than white Americans to be diagnosed with lung cancer at an earlier stage, when the disease is often more treatable, and Black men have the highest lung cancer death rate in the U.S. Does this evidence, taken as a whole and assumed to be true, indicate a legal violation by tobacco companies that produce and sell menthol cigarettes? Explain your response.
   Technically, this evidence does not indicate a legal violation by tobacco companies. The statistical disparity reminds your author of the type of evidence that might be introduced in a Civil Rights Act of 1964 “disparate impact” discrimination case. Disparate impact occurs when policies, practices, rules, or other systems that appear to be neutral result in a disproportionate impact on a protected group. A disparate impact case can be established without evidence of intentional discrimination.
   
   The Civil Rights Act of 1964: 1) outlaws discrimination based on race, gender, national origin, culture, and religion; 2) prohibits discrimination in public places; 3) provided for the integration of schools and other public facilities; and 4) forbids employment discrimination. This legislation does not apply to the subject case. However, even though the sale of menthol cigarettes is currently legal, the ethics of such a practice is certainly subject to scrutiny.

2. In your reasoned opinion, are tobacco companies that produce and sell menthol cigarettes committing an ethical violation by doing so? Why or why not?
   This is an opinion question, so student responses may vary. In your author’s opinion, tobacco companies that produce and sell menthol cigarettes have an ethical obligation to all consumers of menthol cigarettes to address the fact that menthol in cigarettes makes it easier to start smoking and more difficult to stop. Remember, legal standards often represent the minimum standard of appropriate conduct in a civilized society, while ethical standards usually represent the higher standard.

3. Do you personally support or oppose a government ban on the sale of menthol cigarettes? Explain your response.
   This is an opinion question, so student responses may vary. In your author’s opinion, the government ban is appropriate considering the adverse impact menthol cigarettes have on smokers in general. The counterargument is that imposing such a ban constitutes government overreach since consumers should be permitted to make their own decisions regarding the use of products, including those that are harmful.