Biden administration expected to announce plan to ban menthol cigarettes

WASHINGTON - The Biden administration is expected to announce this week that it will propose a ban on menthol cigarettes, an action urgently sought by tobacco opponents and civil rights groups that say African Americans have been disproportionately hurt by the industry’s aggressive targeting of Black communities.

The administration also is poised to say it will seek to ban menthol and other flavors in mass-produced cigars, including small cigars popular with young people, according to administration officials familiar with the situation who spoke on the condition of anonymity because they are not authorized to discuss it publicly.

It could be years before such bans would take effect, but the administration’s announcement is likely to be hailed by antismoking organizations as a critical and long-overdue step in curbing tobacco use and improving public health. Despite sharp declines in smoking in recent years, tobacco use remains a leading source of illness and death in the United States and worldwide, especially among people of color.

Antismoking groups have been frustrated for years by Washington’s inaction on menthol cigarettes and have turned to states and localities to request bans, with mixed success. They became more optimistic about a possible federal ban in recent months amid President Joe Biden’s repeated vows to reduce health disparities made glaringly obvious by the coronavirus pandemic, and efforts by the Black Lives Matter movement to focus on institutionalized racism.

The Food and Drug Administration faces a court deadline Thursday to respond to a 2013 citizen petition seeking a menthol-cigarette ban. The suit was filed by public health groups last year to compel the FDA to respond to the petition. It is pending in federal district court in Northern California.

“There is not an open question on whether menthol in cigarettes is harmful - the evidence is overwhelming and consistent,” Joelle Lester, director of commercial tobacco control programs at the Public Health Law Center at Mitchell Hamline School of Law in Minnesota, said in a recent interview. The law center led a group of 19 public health organizations to file the 2013 petition.

“The Biden administration doesn’t know how to solve every problem. But they know what to do here, and they can do it,” Lester said.

Unlike many of the administration’s plans, a ban on menthol cigarettes or flavored cigars does not require congressional approval. But the FDA first must put out proposed rules and consider public comments. Any final regulation banning menthol cigarettes would almost surely be challenged in court by the industry, which has repeatedly sued the FDA to try to block anti-tobacco regulation.

The administration is still considering another long-sought goal of antismoking activists: requiring tobacco companies to lower the amount of nicotine in cigarettes to nonaddictive levels. But it will not announce action on that issue this week, said the people with knowledge of the situation.

The FDA declined to comment on the administration’s plans.

On menthol, African American health groups and researchers say it is clear that Blacks have been disproportionately hurt by the cigarettes, which studies show are more addictive and harder to stop using than non-menthol cigarettes. In the 1950s, only about 10% of Black smokers used menthol cigarettes. Today, that proportion is more than 85%, three times the rate for White smokers. African Americans die of tobacco-related illnesses, including cancer and heart disease, at higher rates than other groups, according to studies.

Researchers also have found that menthol contributes heavily to young smokers of all races starting the habit by masking the throat irritation caused by cigarettes. Small, flavored cigars, called cigarillos, also have become increasingly popular among young people, studies show.

Civil rights groups and Black health organizations say the popularity of menthol cigarettes among African Americans reflects a calculated campaign by manufacturers to target communities of color that began decades ago.

“The predatory marketing of menthol cigarettes and other flavored tobacco products must be stopped and we should all recognize this as a social justice issue, and one that disproportionately impacts youth and communities of color,” said a recent letter from 10 civil rights and Black health organizations to Health and Human Services Secretary Xavier Becerra pressing for a ban. Signers included the African American Tobacco Control Leadership Council, the NAACP and the National Medical Association, which represents Black physicians.

The letter noted that the tobacco industry gave away free samples menthol cigarettes at gatherings in African American neighborhoods, promoted menthol tobacco through extensive advertising and sponsored educational and cultural events, such as jazz festivals, popular with the Black community. Throughout the years, the industry also has donated generously to the political campaigns of many Black, as well as White, lawmakers.

The industry has denied targeting Black communities or officials. In a recent statement, Kaelan Hollon, a spokeswoman for Reynolds American, maker of Newport, the most popular menthol cigarette, said the company markets its product “to reach a wide and diverse audience of adult smokers, regardless of their ethnicity or gender, with the intention of persuading smokers to choose one of our brands rather than a brand of one of our competitors.”

She added that “the science does not support regulating menthol cigarettes differently than non-menthol cigarettes, and the many issues implicated by a menthol cigarette ban - science, illicit trade and unintended consequences - are important and merit careful thought.”

Efforts to ban the minty flavor have been marked by failure. In 2009, as part of the law that gave the FDA the authority to regulate tobacco, Congress banned all flavors in cigarettes except menthol and directed the FDA to study the issue. During the Obama administration, the agency and its outside advisers found that banning menthol cigarettes would improve public health and save lives, but the administration never moved forward.

In 2013, several groups filed the citizen petition requesting a menthol cigarette ban, including the African American Tobacco Control Leadership Council, the American Lung Association, the Campaign for Tobacco-Free Kids, and an organization now named the Center for Black Health & Equity.

During the Trump administration, momentum for a prohibition appeared to pick up. Scott Gottlieb, who was FDA commissioner at the time, said he would propose a menthol ban, but subsequently left the agency. The effort foundered amid a lack of White House support and vociferous opposition from the industry and its congressional allies.

In June, the African American Tobacco Control Leadership Council and another anti-tobacco group, Action on Smoking & Health, sued the FDA for not responding to the citizen petition. They were joined in the lawsuit by the American Medical Association and the National Medical Association. The FDA agreed to respond to the petition by April 29.

A menthol ban in the past has been stymied in part by divisions within the African American community. Although many Black leaders support a prohibition, others, including the Rev. Al Sharpton, say it would be discriminatory to outlaw a product that is especially popular among African Americans.

These critics also say a ban could lead to an underground market of menthol cigarettes and negative interactions between the police and Black smokers who might buy prohibited products. They point to the case of Eric Garner, who was killed in 2014 by a New York City police officer after police approached him on suspicion of selling illegal single cigarettes, called “loosies.”

These arguments helped defeat efforts to ban menthol cigarettes in New York City in 2019.

But ban supporters, including many in the Black community, counter that the idea that a menthol ban would “criminalize” use of menthol cigarettes or lead to confrontations with the police is a red herring. They note that a ban would apply to manufacturers, wholesalers and retailers, not to consumers. The FDA does not have a police force or take action against individual users, they add.

Meanwhile, support among Black lawmakers for a ban has increased significantly in recent years. Rep. Joyce Beatty, D-Ohio, chairman of the Congressional Black Caucus, and Rep. Karen Bass, D-Calif., a former chairman of the group, support a ban. In 2020, a majority of the caucus voted for House legislation that banned flavors in all tobacco products, including menthol in cigarettes. The House-passed bill was stalled in the Senate.

“A ban on menthol cigarettes and flavored cigars would do more to reduce youth tobacco use and health disparities than any other single action the federal government has ever undertaken,” said Matthew Myers, president of the Campaign for Tobacco-Free Kids.

If a ban were implemented, it would have an enormous effect on the cigarette market. Menthol cigarettes have increased their share of sales even as overall smoking rates have declined in recent decades. Besides Newport, another popular brand is a menthol version of Marlboro, manufactured by Altria.

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The Washington Post’s Lena H. Sun contributed to this report.