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Menthols Fatally Targeted at Black Americans, FDA Told (1)

June 17, 2020, 4:48 PMUpdated: June 18, 2020, 3:50 PM

The FDA’s decision to allow menthol cigarettes to remain on the market is disproportionately killing Black men and women in the U.S., and subjecting them to worsened lung infections like Covid-19, says a suit filed in California Wednesday by two anti-smoking groups.

The Food and Drug Administration announced in November 2018 that it would issue a Notice of Proposed Rulemaking seeking to ban menthol cigarettes. But it reversed course in June 2019, allowing them to remain on the market.

The FDA, by dragging its feet in making a determination whether to add menthol to the flavor ban list as requested in a citizen petition, is violating the Administrative Procedure Act, the suit in the U.S. District Court for the Northern District of California alleges. It was filed by the African American Tobacco Control Leadership Council and the Action on Smoking and Health.

The groups cite a 2011 FDA Tobacco Products Scientific Advisory Committee report stating that if menthol cigarettes had been removed from the marketplace in 2010, roughly 17,000 premature deaths would have been avoided over the next decade, and about 2.3 million people wouldn’t have started smoking.

For the Black community, this would have meant that “roughly 4,700 premature deaths would have been avoided, and about 461,000 African Americans would not have started smoking,” the plaintiffs allege.

The complaint alleges the tobacco companies historically targeted the Black population for menthol cigarette use.

President Obama signed into law the Family Smoking Prevention and Tobacco Control Act in 2009.

Although it didn’t ban menthol, Congress recognized that menthol cigarettes “may pose unique health risks,” and directed FDA to create the advisory committee that issued the 2011 report to consider menthol in cigarettes and periodically reevaluate the flavor ban.

Cause of Action: Administrative Procedure Act.

Relief: Declaratory relief, attorneys’ fees and costs.

Response: A spokeswoman for the FDA said the agency doesn’t comment on litigation.

Attorneys: Pollock Cohen LLP represents the plaintiffs.

The case is African American Tobacco Control Leadership Council v. United States Department of Health and Human Services, N.D. Cal., No. 20-cv-04012, 6/17/20.

(Story filed June 17 updated to add name of second plaintiff)

To contact the reporter on this story: Peter Hayes in Washington at PHayes@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com