FDA unveils plan to ban menthol cigarettes, flavored cigars

Menthol-flavored cigarettes and all flavored cigars would be banned in the U.S. under a new plan unveiled Thursday by federal health officials. 

The Food and Drug Administration (FDA) said it will issue a proposal “within the next year” to ban menthol in cigarettes and ban all flavors, including menthol, in cigars. 

The ban has long been sought by public health advocacy groups, and the administration was facing a Thursday deadline to respond to a lawsuit filed by antismoking and public health groups intended to force the FDA into action.

“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. 

The move is one of the most aggressive actions against tobacco the FDA has taken since it gained regulatory authority in 2009, but the ban is likely to take years to implement and will surely face immense opposition from the tobacco industry and its advocates in Congress.

Public health and civil rights groups have long argued Black Americans have been disproportionately harmed by menthol cigarettes, as the tobacco industry deliberately targeted Black communities for decades.

More than 85 percent of Black smokers use menthol cigarettes, according to federal data, as do more than half of all smokers aged 12 to 17. 

Flavored cigars are also a major problem among Black youth. Black high school students reported past 30-day cigar smoking at levels twice as high as their white counterparts, according to the FDA. 

Black men and women are also much less likely than white Americans to be diagnosed with lung cancer at an earlier stage, when it’s more treatable. Black men have the highest rates of death from lung cancer in the country.

Congress banned flavored cigarettes as part of the 2009 law giving the FDA authority to regulate tobacco products, but a loophole negotiated by industry lobbyists exempted menthol. Instead, lawmakers at the time directed the FDA to determine whether continued sale of menthol cigarettes was “appropriate for public health.”

Kaelan Hollon, a spokeswoman for Reynolds American, which makes Newport, the most popular menthol cigarette, said the company will submit “robust, science-based evidence” as part of the rulemaking process. The company contends there’s no scientific basis for FDA to regulate menthol cigarettes any differently than non-menthol cigarettes. 

Thursday’s announcement was met with praise from anti-smoking and medical groups, who said it was long overdue.

“This proposal will do more to reduce youth tobacco use and health disparities in the African American community than any set of actions the federal government has ever taken,” said Matt Myers, president of the Campaign for Tobacco-Free Kids. “What’s critical is that the FDA not take a year to get this proposal off the ground, and not take years to finalize it.”

Past federal efforts at banning menthol have stalled out, but Myers said he thinks this time is different because the entire Biden administration is behind the effort.

During a call with reporters, Woodcock indicated the agency had the full support of the president.

“The administration is fully supportive of these two product standards moving forward, and we have really strong backing on that, and we’re very appreciative,” she said.

Previous FDA commissioners who tried to ban menthol, like Scott Gottlieb, who served under President Trump, were targeted by the tobacco industry and lawmakers like Sen. Richard Burr (R-N.C.), and did not have the full support of the administration.

Historical efforts at banning menthol have faced opposition not just from tobacco-friendly states, but also from Black leaders and members of the Congressional Black Caucus (CBC).

But support for action has been growing, and the House last year passed a ban on flavored e-cigarettes as well as menthol cigarettes, with the majority of the CBC voting in favor. It died in the GOP-controlled Senate. 

But some opponents of the ban, including the American Civil Liberties Union (ACLU), believe it will lead to an illicit market of menthol products and result in even more police actions against Black communities.

In a letter to Woodcock and Health and Human Services Secretary Xavier Becerra sent this week ahead of the announcement, the ACLU and groups including Black police organizations and the Drug Policy Alliance outlined their concerns.

Invoking the deaths of Eric Garner and Michael Brown, the groups said prohibition of menthol “will trigger criminal penalties, which will disproportionately impact people color, as well as prioritize criminalization over public health and harm reduction.”

FDA said the ban will only address 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 product. The FDA will work to make sure that any unlawful tobacco products do not make their way onto the market,” the agency said in a statement.

The African American Tobacco Control Leadership Council, one of the organizations that sued the FDA, called the announcement a “major step forward in Saving Black Lives,” but acknowledged it was only the next stage in a long fight.

“We know that this rule making process could take years and we know that the tobacco industry will continue to do everything in their power to derail any attempt to remove their deadly products from the market,” Phillip Gardiner, the group’s co-chair, said in a statement.

Updated at 12:20 p.m.