“By combining action against menthol cigarettes with flavored cigars, the FDA will be targeting like a laser beam the products that have the primary role of increasing youth use,” said Matt Myers, president of the Campaign for Tobacco-Free Kids. “The one flaw is this cannot take a year to issue a notice of proposed rulemaking. Timing is everything; it is critical that the FDA move forward rapidly, both to start the process and to finish it.”
Momentum for banning menthol cigarettes has grown over the past several years, with lawmakers and public health groups pointing to decades of targeted marketing toward Black communities.
“Banning menthol — the last allowable flavor — in cigarettes and banning all flavors in cigars will help save lives, particularly among those disproportionately affected by these deadly products,” acting FDA Commissioner Janet Woodcock said in a statement.
More than 85 percent of Black Americans who smoke report using menthol products. But critics of the ban argue that it will trigger a black market that could exacerbate over-policing and violence against those communities.
Mitch Zeller, the director of FDA’s Center for Tobacco Products, said enforcement of the eventual ban would be aimed at manufacturers, distributors, wholesalers, importers and retailers.
“The FDA cannot and will not enforce against individual consumer possession or use of menthol cigarettes, or any tobacco products,” Zeller said. “Our job will be to make sure that any unlawful tobacco products do not make their way onto the market.”
The top tobacco regulator told reporters “it’s a fair question” why the FDA hasn’t taken quicker action to regulate menthol cigarettes. He noted the agency received about 175,000 comments when it issued an advanced notice of proposed rulemaking in 2013.
“Many of those comments were were part of letter-writing campaigns either in support of a ban on menthol or opposing a ban on menthol,” Zeller said. “But we have important obligations once the comments come in to make sure we have carefully considered every comment that was submitted.”
Zeller declined to estimate when the ban would be finalized and go into effect, or if the agency would push back against future legal efforts to compel FDA to take action within a certain time frame.
“We’ve announced what our goal is,” Zeller said. “The organizations that originally petitioned us, and then the groups that then sued us will need to decide for themselves what actions that they want to take. And rather than speculate on any potential litigation scenario, we’ll just wait to see how this plays out.”
A study cited by FDA suggests that banning menthol cigarettes in the U.S. would lead roughly 923,000 smokers to quit, including 230,000 Black Americans, in the first year and a half. Another study projects that 633,000 tobacco-related deaths would be averted.
While cigarette use has steadily fallen over recent years, menthol use has declined more slowly. Menthol helps mask the harshness found in other cigarettes.
The Biden administration is still considering regulations to cut allowable nicotine levels in cigarettes, according to Woodcock.
“We have not finished deliberations on that matter,” she said.