Menthol cigarette ban proposal nixed by Trump administration

By Fiona Rutherford

A proposed ban on menthol cigarettes and flavored cigars was withdrawn by the Trump administration, a blow to public health advocates who attribute thousands of premature deaths to the additive.

The draft ruling to ban menthol was listed as “withdrawn” in a regulatory docket earlier this week. Shares of cigarette makers gained on the news Friday, with Altria Group Inc. rising as much as 1.9% in New York and British American Tobacco Plc gaining 0.4% in London.

The proposal took on political heft during the 2024 election, as the Biden administration delayed issuing a final rule that would have added menthol to the 2009 list that banned all other flavorings in cigarettes. Black Americans, a key voting block, smoke disproportionately more menthol cigarettes than other racial and ethnic groups, and many groups lobbied against the ban.

While the Food and Drug Administration’s proposal was intended to improve the health of Americans, it also would have hampered individual purchasing decisions. Critics said the latest move is a setback after years of gains from anti-tobacco efforts and deemed it a continuation of a predatory policy that mostly impacts Black smokers.

Keeping such a deadly product on the market is “a big slap in the face,” especially after the ban was so close to being enforced, said Phillip Gardiner, co-chair of the African American Tobacco Control Leadership Council. “This is something we’ve been fighting for for 15 years,” he said. “To put it quite bluntly, it’s the continuation of a racist policy.”

The impact won’t be limited to one set of smokers, anti-tobacco groups said, pointing out that the Trump administration’s decision counteracts its stated objective of improving health in America.

“Withdrawing the FDA proposed rule to ban menthol will have truly dire consequences for Americans,” said Kelsey Romeo-Stuppy, managing attorney at Action on Smoking and Health. “If the Trump administration wants to make America healthy again, they must allow the FDA to ban menthol.”

Smoking is the leading cause of preventable death in the US. Research shows that 1.3 million Americans are likely to quit if the US bans menthol in tobacco products, Romeo-Stuppy said.

“Any policy that helps millions of Americans quit smoking would be a monumental success,” she said.

All in Favor

Others applauded the withdrawal of what they called “overreaching regulations,” pointing out that the majority of 250,000 comments submitted to the FDA during a public comment period opposed the measure.

A ban would have had significant financial consequences for retail stores, including substantial lost revenue, coupled with job losses across the country, said David Spross, executive director of the National Association of Tobacco Outlets.

“The supply of these products would have shifted from responsible, licensed and regulated stores to expand an already existing illicit marketplace,” he said.

Reynolds American, the unit of British American Tobacco Plc that makes Newport and Camel cigarettes, welcomed the decision, saying “prohibitionary” policies don’t work.

“There are more effective ways to transition adult smokers away from cigarettes,” said Luis Pinto, a company spokesperson.

The FDA declined to comment, citing the administration’s restrictions on communicating with the public about health topics during the presidential transition. Altria referred reporters to the FDA.

Applying Pressure

The 2009 Tobacco Control Act, which gave the FDA the authority to regulate the industry, banned all flavors of cigarettes except menthol. While it instructed the agency to “further consider the issue of menthol in cigarettes,” controversy over the issue hampered any action for years.

The FDA proposed two rules to end the sale of menthol cigarettes and flavored cigars in April 2022 after relentless urging by advocacy groups. The agency repeatedly missed deadlines to take action, and a final rule expected in 2023 was further delayed by the Biden administration last year.

The agency was weighing “an immense amount of feedback,” including from civil rights activists and criminal justice reform advocates, former Health and Human Services Secretary Xavier Becerra said at the time. “It’s clear that there are still more conversations to have and that will take significantly more time.”

Around 85 per cent of all Black smokers prefer menthol cigarettes, compared to 29 per cent of White smokers, according to the 2018 National Survey on Drug Use and Health.

The disparity is primarily due to aggressive marketing tactics of menthol tobacco products in Black communities, according to the Centers for Disease Control and Prevention. They include advertisements and freebies offered in predominantly Black neighborhoods and Black-owned publications, as well as sponsorship of events like jazz concerts.

More than 10 million Americans started smoking because of menthol cigarettes between 1980 and 2018, and around 378,000 died prematurely, according to the CDC.

The lengthy delays have already pushed the battle over menthol cigarettes to state and local levels. More than 380 localities across 13 states and the District of Columbia passed restrictions on the sale of flavored tobacco products, with at least 190 limiting menthol cigarettes, according to the Campaign for Tobacco-Free Kids.

“It is deeply disappointing that a final rule was not issued in a timely manner,” said Yolonda Richardson, the group’s chief executive officer. “It is more critical than ever that states and cities step up their efforts to end the sale of menthol cigarettes and other flavored tobacco products.”