Officials originally planned to finalize the rules in August 2023 and later signaled to public health groups that they hoped to finish them by January, although the resulting ban was not expected to go into effect for several years because of anticipated legal challenges.
The debate over cracking down on menthol products comes as Biden ramps up his reelection campaign. Democrats have already voiced concerns that Biden’s flagging popularity could mean low turnout among Black voters whose political support propelled him to the White House.
More than 18.5 million people in the United States smoked menthol cigarettes in 2019. Among smokers who are Black, 81 percent choose menthols, according to the Centers for Disease Control and Prevention, a far higher rate than for smokers who are White. Top civil rights and health groups have long maintained that the tobacco industry has a history of aggressively marketing to Black communities.
The proposed ban has revealed deep fissures in the African American community, with proponents saying that removing menthol cigarettes will save hundreds of thousands of lives. But high-profile opponents, including the American Civil Liberties Union and some prominent civil rights figures such as the Rev. Al Sharpton, assert that a ban would foster an underground market, leading police to disproportionately target smokers who are Black.
Public health officials warn that menthol enhances the effect of nicotine on the brain and can make tobacco products more addictive. The menthol creates a cooling sensation that makes smoke feel less harsh and easier to inhale.
The White House has been reviewing the planned ban, written by the Food and Drug Administration, on menthol cigarettes since October. The FDA is also pursuing a ban on flavored cigars and new limits on nicotine in cigarettes, although the process of finalizing those rules is set to be delayed until at least March as well.
Officials have insisted that the bans would not target individual consumers but that enforcement would focus on manufacturers, distributors and retailers.
The Biden administration’s regulatory agenda issued Wednesday set the new target date of finalizing rules for the menthol ban by March. That agenda is not binding, and officials noted that the White House could still elect to finalize the new tobacco rules before next March — especially as public health groups amp up their own peer pressure.
“The timing matters,” said one official, who noted that waiting to finalize the rules could expose them to a regulatory process that allows a new White House to swiftly reverse rules issued in the final months of a prior administration. Florida Gov. Ron DeSantis (R) has pledged to reverse the rules if elected, and President Donald Trump declined to ban menthol cigarettes during his time in office.
The White House said Tuesday it could not comment on pending rules. The FDA has explored a menthol ban for more than a decade and proposed the rules in April 2022. The agency said it remains committed to issuing tobacco standards for menthol cigarettes as “expeditiously as possible” but is limited from discussing the rules until they are published.
Health advocates and officials have spent years clamoring for bans on the products and expressed dismay about a further delay.
“This would be devastating,” said David Margolius, director of public health for Cleveland.
Margolius said smoking is the No. 1 cause of death in metro Cleveland — where 35 percent of adults smoke cigarettes, more than three times the national average — and the City Council is considering a ban on menthol cigarettes. But local attempts to crack down on smoking have been stymied by Ohio’s GOP-controlled legislature.
“Cities like Cleveland, and states with conservative legislatures, are really counting on our White House to protect our community, because we’ve seen that the state legislature won’t act, and they may even act to preempt any local regulation,” Margolius said. “We need the White House to act to save lives.”
California and Massachusetts have already banned the sale of menthol cigarettes. Critics in California say tobacco companies may be skirting the ban by selling “menthol-like” cigarettes.
Karen E. Knudsen, chief executive of the American Cancer Society, said her organization was among a coalition of public health associations that this month will take out ads in national newspapers, send letters to lawmakers and pursue other steps to encourage the Biden administration to finalize the rule.
“The cost of inaction is high,” said Knudsen, citing projections that a ban on menthol cigarettes would save as many as 650,000 lives during the next 40 years.
The products are a gateway to addiction, she said, noting that since 1980, the Black community had accounted for 1.5 million new menthol cigarette smokers.
Researchers and regulators have blamed the rise in menthol cigarette use on aggressive marketing to Black communities, an assertion cigarette companies deny.
“There is absolutely no reason for delay on a policy that has been studied for more than 12 years and is essential to the President’s health equity and Cancer Moonshot agenda,” Yolonda C. Richardson, chief executive of the Campaign for Tobacco-Free Kids, said in a statement. “If the White House gives in to the tobacco industry’s fearmongering now, it will further undermine public trust in government and make it even harder to move forward in an election year.”
Manufacturers sold 173.5 billion cigarettes in 2022, according to the Federal Trade Commission’s annual Cigarette Report, well below annual sales in the 1980s that often topped 600 billion. Among major manufacturers, menthol cigarettes made up 36 percent of the market, the report said.
Tobacco companies oppose the ban, insisting science shows menthols pose no greater risk than other cigarettes. R.J. Reynolds, which makes Newport, the nation’s top-selling menthol brand, said in a statement Tuesday that a ban would hurt small businesses, dent tax revenue and contribute to a dangerous illegal market.
“A ban on menthol flies in the face of proven science and is contrary to the FDA’s stated goal of reducing the health effects of tobacco use,” the statement said.
Sen. Richard J. Durbin (D-Ill.) in a statement Tuesday urged Biden to swiftly finalize the rule, accusing the tobacco industry of “funding scare tactics in hopes of a delay to protect its profits.”
Critics of the ban have echoed concerns about an illegal market for menthol cigarettes — including conservative groups and lawmakers who have attacked Biden and Democrats by playing up fears of crime and Mexican criminal groups already trafficking in deadly fentanyl. Earlier this year, Sens. Marco Rubio (R-Fla.) and Bill Cassidy (R-La.) sent a letter to the FDA claiming the ban on menthol cigarettes could embolden Mexican cartels to sell illegal tobacco products in the United States alongside “their extensive distribution networks.”
The proposed ban has split prominent Black lawmakers and other key figures. While members of the Congressional Black Caucus this year said they supported the rule and urged Biden to enact it, several former lawmakers and other opponents met with senior Biden administration officials — including FDA Commissioner Robert Califf and Health and Human Services Secretary Xavier Becerra — on Nov. 20 to warn against cracking down on menthol products. The meeting was first reported by Stat News.
The meeting included high-profile civil rights attorney Ben Crump, who represented the family of Eric Garner, the New York man who died in 2014 after a police officer put him in a chokehold while being arrested on suspicion of selling loose cigarettes. Gwen Carr, Garner’s mother, has opposed the menthol ban, as has Crump; the Wall Street Journal reported last year that Crump acknowledged accepting money from Reynolds for Black youth scholarships but that he said it has not influenced his opinion.
Crump told “The Bakari Sellers Podcast” last year that the ban was “arbitrarily” criminalizing a product used by many African Americans smokers. “How about the cigarettes that White people smoke?” Crump said. He also compared a possible menthol ban to the 1994 crime bill, sponsored by Biden when he was in the Senate. Some analysts have said the crime bill resulted in the mass incarceration of Black men, sparking backlash in the Black community. As a presidential candidate in 2020, Biden acknowledged that his support for the bill was a “mistake.”
Benjamin F. Chavis, president of the National Newspaper Publishers Association, which represents more than 200 newspapers serving the African American community, said he supports pausing the proposed menthol ban, although he said a pause should last years to give time for a national racial impact study.
“I think the Biden administration has considered a pause so they can get more facts about the unintended consequences. I also believe that the ill-advised timing of an FDA ban on menthol cigarettes will have a negative impact on how Black Americans vote in 2024,” said Chavis, who said his association is not influenced by tobacco companies but acknowledged Reynolds sometimes places ads in member newspapers and sponsors association events.
Rep. Robin L. Kelly (D-Ill.), who chairs the Congressional Black Caucus’s health-care task force, said she understood the tensions given Garner’s death and other “things that have happened to African Americans, specifically with cigarettes.” But she renewed her call for the Biden administration to swiftly proceed with a ban and stressed that smokers should not fear it.
“It’s not the individuals that will be sought” by law enforcement, Kelly said. “It’s those selling the cigarettes, or the company selling cigarettes.”
Delmonte Jefferson, executive director of the Center for Black Health & Equity, criticized other African American leaders opposing the ban, calling them “paid mouthpieces” for the tobacco industry. He also blasted the administration, saying he doesn’t believe a ban will cost Black votes.
“When you ban menthol, you’re going to save Black lives,” Jefferson said. “You mess with the Black vote when you say, ‘I don’t value your life, I don’t value your health.’”
