FDA proposes to ban menthol cigarettes and flavored cigars

“The proposed product standards would, among other things, improve the health and reduce the risk of death for current smokers of menthol cigarettes or flavored cigars by significantly decreasing their consumption and increasing the likelihood of quitting. This is a another important step forward in the agency’s efforts to combat youth smoking and promote health equity.

This historic proposal could have a significant impact on public health, experts have said.

“I want to underline the capital aspect of this. It will be a game changer”, Erika Sward, assistant vice president of national advocacy for the American Lung Association, said Thursday. “The rules will have a huge impact in preventing children from starting to use tobacco and will critically save the lives of people, especially from diverse backgrounds.”

Long to come

Menthol is a fairness issue that the FDA has considered for more than a decade. It is the last special flavor allowed in cigarettes in the United States. It was pruned in the 2009 Tobacco Control Act which banned all other flavored cigarettes and gave the FDA the power to regulate the tobacco industry to protect public health. The law also required the FDA to conduct and fund research on menthol.
After several years of investigation by the FDA and public input from hundreds of thousands of interested parties, the Public Health Law Center and other groups have filed a citizen petition asking the agency to ban menthol in cigarettes. A 2020 lawsuit alleged that the FDA unreasonably delayed issuing a final response. In 2021, the FDA announced that it would continue rulemaking.
On 18.6 million people smoke menthols in the USA. That’s about 36% of all smokers, according to the FDA, and a disproportionate number of people of color.

A matter of fairness

The tobacco industry has heavily marketed menthol products to communities of color and other minority groups.

About 30% of white smokers choose menthols, but they are the cigarette of choice for nearly 85% of black smokers. On 40% women smoke menthols, compared to 31% of men, according to the FDA.
LGBTQ people are also significantly more likely smoke menthols. A 2013 study which examined data from the US Centers for Disease Control and Prevention’s 2009-10 National Adult Tobacco Survey found that 36% of LGBTQ smokers chose menthols, compared to 29.3% of smokers heterosexuals.
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“Today marks the beginning of the end for menthol cigarettes – a truly historic moment for public health. For decades, tobacco companies have intentionally pushed menthol cigarettes to hook young people on their deadly products and put in place racist marketing practices to intentionally target black Americans; the resulting health consequences have been devastating,” said Dr. Julie Morita, executive vice president of the Robert Foundation advocacy organization. Wood Johnson, in a statement.

More than half of children who smoke use menthol cigarettes, According to the CDC. A survey of adult smokers found the majority started with menthols. Other studies reported that children who smoked menthol cigarettes were more likely to become regular smokers than occasional smokers.

“The proposed rules would help prevent children from becoming the next generation of smokers and help adult smokers quit,” Health and Human Services Secretary Xavier Becerra said in a statement Thursday. “Additionally, the proposed rules represent an important step in advancing health equity by significantly reducing tobacco-related health disparities.”

Banning menthol cigarettes and flavored cigars could save hundreds of thousands of lives, experts say
The smoking rate in the United States hit an all-time high in 2018, According to the CDC, but smoking remains the leading cause of preventable death, disease and disability in the country. In general, smoking is responsible for more than 480,000 deaths per year in the United States, including more than 41,000 deaths from second-hand smoke.
Removing menthol from cigarettes and cigars could have a significant effect on the number of smokers, the FDA said. According to one estimate, it could even prevent 650,000 premature deaths over the next 40 years.
Another study projects that eliminating menthol as a cigarette flavor would cause 923,000 people to quit smoking, including 230,000 African Americans, within the first year and a half.

Switch to flavored cigars

After the Tobacco Control Act 2009 banned flavored cigarettes, many smokers who preferred flavors – especially children – may have switched to flavored cigars, including menthol and “kid friendly” flavors like fruit punch, strawberry and grape.

The FDA said the use of flavored cigars “has increased dramatically” and that public health goals may have been “undermined” by the availability of these products. According to the FDA, more than half a million young people in the United States smoke flavored cigars.

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Flavored cigars and cigarillos are particularly popular among children, especially black and Hispanic children, who are twice as likely to smoke them as their white classmates.

The FDA noted that a survey found nearly 74% of teens ages 12 to 17 said they smoke cigars because they come in flavors they enjoy.

In 2020, more young people reported trying a cigar every day than trying a cigarette.

“A ban on menthol cigarettes and flavored cigars would mark a historic turning point in the decades-long battle against smoking and the epidemic of tobacco-related disease,” Nancy Brown, CEO of the American Heart Association, said in a statement. Thursday. “The science is clear: Menthol cigarettes have a negative impact on public health and have no public health benefit over menthol-free cigarettes. They increase the likelihood and degree of dependence among young smokers, increasing thus the number of premature deaths from tobacco use. Removing them from the market would have enormous public health benefits in this country.”

Individual consumers would not be prosecuted

If passed, the FDA was careful to note that the rule will only affect tobacco companies and industry. The agency, as well as state and local law enforcement, do not independently enforce FDA rules.

The proposed rule would not prosecute individual consumers for possession of menthol products.

Some activists, like the Reverend Al Sharpton and the Mothers of the movementwarned that a ban on menthol products could lead to more violent encounters with police as they enforce the rule.
Anti-tobacco activists to have found that Sharpton and some other civil rights organizations have received money from cigarette manufacturers for decades. Sharpton recognized in the New York Times in 2019 that Reynolds American is a longtime donor to his National Action Network, but said “it’s not about the money.”

Other groups, like the NAACP and many members of the Congressional Black Caucus, support a ban.

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“The targeting and marketing of menthol flavor by the tobacco industry has had a devastating impact on our community. Menthol flavored cigarettes have induced many children and adults, leading to lifelong addictions, health problems and , ultimately, the death of our loved ones,” the NAACP said in a statement. “Today is a huge victory for equity, justice and public health concerns.”

The FDA said Thursday that it “recognizes concerns about how state and local law enforcement agencies may enforce their own laws in ways that could impact the fairness and safety of the community, particularly for underserved and underrepresented communities. The FDA seeks comments on, among other things, how it can better clarify the respective roles of the agency and state and local law enforcement, as well as policy considerations related to potential racial and social justice implications of proposed product standards.

Califf said that’s something the agency will address more in the future.

“We take these concerns seriously,” he said. “Let’s be very clear about one thing. These measures and their related enforcement would apply to the tobacco industry, not the people who own or use these products.”

Next step: public comment period

An FDA ban on menthol and flavored cigars will not take effect immediately.

The next step will be a comment period that will run from May 4 to July 5. The FDA will also hold public listening sessions on June 13 and 15.

The agency should then take the time to review the comments before a rule is finalized.

The rule would come into effect one year after the publication of the final version. Public health experts are confident that tobacco companies will also try to end the ban by suing the agency, as they have done with previous smoke-free legislation.

“It’s not trivial,” Califf said. Tobacco-related deaths are high, he noted, as are tobacco-related illnesses.

“My plea is that we don’t lose our sense of urgency about this,” he said. “Literally, lives can be saved.”

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