The Food and Drug Administration (FDA) has made an unsettling and potentially dangerous decision to ban menthol cigarettes nationwide.   While it was cited by the April 28 Politico as “one of FDA’s most aggressive tobacco reform efforts since the agency first began regulating the industry in 2009, and one long-awaited by scores of public health groups,” the adverse consequences clearly were not considered seriously by the agency.   

This ban is in response to a 2013 citizen’s petition that was brought to the FDA.  While Citizens Against Government Waste (CAGW) understands the concern about smoking, this decision will create a huge black market for menthol cigarettes, along with its related criminal activities.  There are much better and safer ways to help people quit smoking, which the ban will fail to achieve.

The largest supplier of illicit menthol-flavored cigarettes will likely be China, which grows the most tobacco in the world.  According to Statista, in 2019, China produced 2.61 million metric tons.  Its closest competitor was India at 804.4 thousand metric tons, Brazil with 769.8 thousand, Zimbabwe at 257.8 thousand, and the United States at 212.3 thousand.

Submitting a petition to the FDA influences the agency to either issue, change, or cancel a regulation or take another action.  The agency receives about 200 petitions a year and they require careful preparation by the submitter.  In 2018, then-FDA Commissioner Scott Gottlieb, M.D., began the process to ban menthol-flavored cigarettes by releasing a series of regulations on the tobacco industry, which also included a ban on fruit and mint flavored pod-based electronic cigarettes, like Juul, and caps on nicotine levels.  The reduced nicotine level was dropped when Gottlieb left the agency in 2019.  However, the Biden administration may decide to renew that effort.

NBC News reported that black smokers make up 85 percent of all menthol tobacco users, a statistic that was used by groups like the African American Tobacco Leadership Council and the Action of Smoking and Health to sue the FDA for non-action on the petition, claiming that the tobacco industry has “targeted blacks.”  The court gave the FDA a deadline of April 29, 2021 to make a decision.  It will likely take at least two years for the menthol-flavored cigarettes to be taken off the market.

While health officials claim the delay is not necessarily a bad thing because it will give time to create smoking cessation programs, it also gives bad actors time to produce an illicit market.  Two dozen justice, law enforcement, legal, drug policy organizations, including the ACLU, Drug Policy Alliance, Legal Action Center, and the National Association of Black Law Enforcement Officers recognized the serious problem with banning menthol cigarettes and sent a letter to the Health and Human Services Secretary Xavier Becerra on April 26 expressing their concerns.  They wrote:

The undersigned organizations write to express our deep concerns over reports that the U.S. Food and Drug Administration (FDA) may be contemplating regulations to prohibit menthol cigarettes.  While no doubt well-intentioned, these proposals raise the same concerns a number of organizations expressed last year with respect to H.R.  2339, the Reversing the Youth Tobacco Epidemic Act of 2019.  Policies that amount to prohibition for adults will have serious racial justice implications.  Such a ban will trigger criminal penalties, which will disproportionately impact people of color, as well as prioritize criminalization over public health and harm reduction.   A ban will also lead to unconstitutional policing and other negative interactions with local law enforcement.

When products are banned or taxed to extreme amounts, it creates an atmosphere for illegal activity.  For example, New York has the highest cigarette excise tax and the highest retail tax per pack in the country at $10.45 a pack.  The Mackinac Center for Public Policy and the Tax Foundation issue an annual report estimating how many cigarettes are smuggled into or out of states.  They determined New York continues to suffer with the highest cigarette smuggling operation in the country and estimated that 53 percent of the market is illegal.

CAGW has long argued that supporting the use of tobacco harm reduction products, like vaping, heat-not-burn, and similar electronic cigarettes, is the better course of action than raising taxes or worse, banning them entirely.  England’s public health officials have encouraged these types of products because they are far less harmful than combustible cigarettes and can be used to quit smoking.  Public Health England’s seventh report found that vaping is better than nicotine replacement therapy to stop smoking.

This proposed ban of menthol cigarettes is reminiscent of the Prohibition era that prevented the manufacture, sale, and transportation of alcoholic beverages from 1920 to 1933.  This flawed law gave rise to bootlegging and grew organized crime.  We urge the FDA to reverse this unwise course and instead encourage people to move away from combustible cigarettes through education and using harm reduction products to quit smoking.