FDA Must Act Quickly on Menthol Ban to Save Black Lives, Advocates Argue

Tobacco control advocates argued that the FDA must act swiftly to ban all menthol products and address the “pernicious targeting” of Black smokers, during an online briefing hosted by the Alliance for Health Policy and sponsored by the Robert Wood Johnson Foundation on Wednesday.

“We look at menthol as a human rights and a social justice issue,” said Carol McGruder, a founding member and co-chair of the African American Tobacco Control Leadership Council, based in San Francisco.

A million Black Americans have died from menthol tobacco products in the last 20 years, she said — “which are easy to start and they’re harder to quit” and they “numb” users’ lungs so that they inhale the toxins more deeply.

McGruder characterized the last several years of action on tobacco-control issues as “trickle-down public health policy” — meaning the policies that are passed are the ones protecting those with the most agency, and the most time to help them get implemented.

And because the Black community has so many other issues to deal with, tobacco control is sometimes overlooked, she said.

So, while eight to nine out of 10 Black smokers smoke menthol tobacco products, and nine in 10 Black young people start smoking with menthol products, flavor bans and other tobacco-control legislation passed just over a decade ago excluded menthol products, McGruder noted.

When the 2009 Family Smoking Prevention and Tobacco Control Act passed, it banned flavored cigarettes but made an exception for menthol, and that exclusion”was not based on science; it was based on a negotiation,” McGruder said.

That action, for Black families, begged the question: “Who will protect our children?” McGruder said.

“African American smokers are not born whole as adults with a Newport cigarette in their mouths,” she said, noting that the high rates of menthol product use among Black smokers aren’t just a fluke.

It’s the result of years of “pernicious targeting” by the tobacco industry, which flooded Black communities with media campaigns, free giveaways for kids, retail programs, sponsored events and even exploited Black leaders to attract more African American users.

Marie Evans was an African American woman who was given free Newport cigarettes when she was 9. She was addicted by age 13 and dead at age 54, McGruder said.

Evans’ son successfully sued Lorillard Tobacco Company and was awarded $152 million by a Boston jury, McGruder said (the family later settled and was awarded over $70 million).

But it will take more than individual lawsuits to save Black lives, McGruder and other discussants in the briefing noted.

On April 29, 2021, the FDA committed to writing a proposed rule that would restrict menthol flavors in cigarettes and cigars in the next year, and laid out a timeline for a complete ban.

This action came on the heels of a lawsuit by the African American Tobacco Control Leadership Council, the American Medical Association, the National Medical Association, and other stakeholders filed in 2020 and a Citizen Petition filed by the Public Health Law Center at the Mitchell Hamline School of Law in St. Paul, Minnesota.

During the more than 10 years that passed waiting for federal action, local municipalities began taking steps toward improving tobacco control.

In 2013, Chicago created a “buffer zone,” a 500-foot radius around schools where all flavored products including menthol couldn’t be sold. In 2017, San Francisco became the first large city to take menthol and flavored tobacco products offline, McGruder noted. Two years later, in November 2019, Massachusetts passed a law banning all flavored tobacco products including menthol and California followed suit, in 2020, but its legislation is now dependent on a ballot referendum.

And in nearly every instance tobacco companies pushed back with their own campaigns and lawsuits.

McGruder recalled that in Los Angeles, the industry paid Black smokers to say that anti-tobacco legislation, such as Senate Bill 793, was discriminating against Black people.

“It offends us that the industry has used racialized targeting of African Americans, and now they’re flipping it to say that to take these products off [the market] is racist,” McGruder said.

But as Matthew Myers, president of the Campaign for Tobacco-Free Kids, argued, now is the time to push for federal action because without it African Americans and other people of color in states and localities without such bans will remain vulnerable to the harms of menthol products.

A number of factors make now a promising time for action, he said. First, across the country there is growing concern for health equity “unlike anything we’ve seen in our country.” Second, the nation has a president and administration that is committed to confronting the problem. Third, federal action on tobacco control isn’t dependent on congress because the 2009 legislation, despite other shortcomings, did give the FDA the power to address the issue unilaterally.

In 2009, congress directed the FDA to convene a meeting of the Science Advisory Committee, which determined in July 2011 “that the removal of menthol cigarettes from the marketplace would benefit the public health in the United States,” Myers said.

The agency even conducted its own study and came to an “identical” conclusion, but the FDA didn’t act and “didn’t act for purely political purposes,” Myers said.

In 2017, then FDA Commissioner Scott Gottlieb, MD, declared his intent to put forward a rule that would end the sale of menthol cigarettes, Myers noted. “But once again the process stalled out.”

Now with a proposed rule on the horizon, promised within the year, followed by a public comment period of 60 to 90 days or longer, and ultimately a final rule, tobacco-control advocates need to keep pressure on the agency to move quickly and on congress not to interfere, he said.

And when the tobacco companies sue the FDA, as Myers anticipates they will, advocates will need to encourage the agency to oppose the litigation.

“We have a unique opportunity,” said Myers. “But what we do — not just over the next 6 months, but over the next couple of years — will be critical to whether this hope turns into reality.”