Bloomberg Law
Free Newsletter Sign Up
Bloomberg Law
Free Newsletter Sign Up

FDA Plans to Ban Menthol Cigarettes, Citing Minority Impact (2)

April 29, 2021, 4:31 PM

The U.S. Food and Drug Administration has moved to ban the sale of menthol cigarettes, citing their disproportionate effect on the health of African Americans.

The decision infuriated tobacco companies but delighted anti-tobacco activists and public-health advocates.

In its announcement Thursday, the FDA said it’s “working toward issuing proposed product standards within the next year to ban menthol” as a flavor in cigarettes. It also plans to ban all flavors, including menthol, in cigars. The agency will allow an opportunity for public comment, and a ban would likely take years to take effect.

“Banning menthol -- the last allowable flavor -- in cigarettes and banning all flavors in cigars will help save lives, particularly among those disproportionately affected by these deadly products,” Acting FDA Commissioner Janet Woodcock said in the statement.

WATCH: The U.S. Food and Drug Administration announced a move to ban menthol cigarettes.
Source: Bloomberg)

She said the ban would save lives and address health disparities in communities of color and in low-income populations. About 85% of Black smokers in the U.S. favor menthols, by some estimates, compared with just 29% of White smokers.

The move comes after more than a decade of inaction. Congress first recommended in 2009 that the agency decide what to do about menthol flavoring in cigarettes, which gives them a minty taste and soothes the throat but can make smoking more addictive, the FDA said.

Earlier: Lawsuit Aims to Ban Menthols, Big Tobacco Bait for Black Smokers

Anti-tobacco groups applauded the decision. “The Biden Administration is taking truly historic action to protect kids from tobacco addiction, advance health equity and save lives, especially among Black Americans,” said Matthew L. Myers, president of the Campaign for Tobacco-Free Kids.

But the move drew immediate pushback from cigarette makers, including Altria Group Inc., which was in the middle of its quarterly earnings conference call when the news was announced. Chief Executive Officer Billy Gifford said the effect on the industry is unclear at this stage, but he was skeptical that a menthol ban would have the desired effect on public health.

“We don’t think prohibition works,” he said on the call, adding that a ban “is fraught with unintended consequences.”

The company, which makes and sells Marlboros in the U.S., has cautioned that if there aren’t enough satisfying alternatives for smokers to switch to, they will keep using regular cigarettes or move to black-market products.

“A far better approach is to support the establishment of a marketplace of FDA-authorized non-combustible alternatives that are attractive to adult smokers,” the company said in a statement. It also said youth smoking rates, including menthol cigarettes, are at historical lows.

Imperial Brands Plc, whose U.S. unit, ITG Brands, makes Kool cigarettes, in a statement called the decision “disappointing, but not unexpected.” The company said it believes the rulemaking process “will reveal that there is no clear scientific evidence to support a federal menthol and flavor ban.”

British American Tobacco Plc, which owns Reynolds American Inc., in a statement said the scientific evidence “neither shows a difference in health risks between a menthol and a non-menthol cigarette, nor does it support that menthol cigarettes adversely affect initiation, dependence or cessation.”

‘Clear Science’

The FDA disagreed, saying its decision “is based on clear science and evidence establishing the addictiveness and harm of these products.”

“Menthol acts like a drug when it is smoked,” Woodcock said in a call after the announcement. “It is has anesthetic qualities and qualities that help mask the irritation of tobacco smoke.”

The FDA also emphasized that a menthol ban won’t lead to increased policing of African American communities because the ban addresses manufacture and sale of flavored tobacco, not individual use. What’s more, state and local police don’t have authority to enforce FDA law.

U.S. menthol cigarettes make up about 25% of BAT’s profit, 20% of Altria’s and 15% of Imperial Brands’, according to estimates from Jefferies analyst Owen Bennett.

Altria shares in New York were down about 1.9% at 12:17 p.m. Imperial Brands and BAT also ticked lower.

Cigarette makers might have to re-align their businesses if sales decline and menthol smokers don’t switch to regular cigarettes or nicotine alternatives, such as e-cigarettes and oral tobacco. About 35% of U.S. cigarette sales by volume are menthols, according to an estimate from Adam Spielman, a Citigroup Inc. analyst.

Public Health Benefits

The FDA in 2009 created a committee to review scientific research on menthol and make a recommendation. In 2011, the agency concluded that removing menthol tobacco products would help public health. Yet the agency never issued a final rule, spurring the lawsuit from the African American Tobacco Control Leadership Council.

“We brought our lawsuit to compel the agency’s determination, and more importantly, to protect the public health. We’re hopeful today that FDA’s announcement is a significant step in the right direction,” said Christopher Leung, a lawyer with Pollock Cohen LLP who brought the lawsuit against the FDA.

Banning menthol cigarettes may improve overall public health, given smoking’s correlation to problems like cardiovascular disease, cancer, chronic lung disease and Covid-19.

A ban also could particularly benefit the health of African Americans of all ages. Studies have shown that tobacco companies for decades have used targeted ad campaigns and lower prices to market menthols to Black people.

The ban doesn’t cover e-cigarettes or oral tobacco, where flavors including menthol are still popular. Cigarette companies and foundations that they fund have said it’s important that those continue, as they help attract smokers onto their growing stable of reduced-risk products. Indeed, the results of menthol bans in other countries have shown that many menthol smokers will turn to regular cigarettes without attractive alternatives.

In Canada, a recent study found that almost 60% of people switched to other kinds of cigarettes when menthol was banned in 2017. However, the ban did lead to almost 22% of people quitting smoking. But nearly 20% still smoked menthols, primarily purchased from areas where Canada’s indigenous people live, where they were still available.

In Europe, a ban prompted work-arounds from some companies, like cardboard strips that can be inserted into packs to impart a peppermint aroma. And companies said they weren’t badly affected.

Modest Effect

Spielman, the Citi analyst, said a menthol ban would have only a modest effect on smoking rates. He cited the menthol bans in Canada and the EU, where most of the consumption moved to normal cigarettes, according to the tobacco companies.

Pressure on the FDA to act on menthol has ramped up recently. Action on Smoking and Healthurged the United Nations to address menthol as a human-rights issue.

Tobacco companies have used so-called racialized experiential marketing -- encouraging consumers to experience or interact with a brand at recreational venues and events, such as concerts, bars and nightclubs -- to specifically target certain populations, including African Americans, the group said.

An April 16 letter from 17 U.S. senators to the U.S. Department of Health and Human Services urged the FDA to ban menthol, saying it would “protect youth from nicotine addiction and tobacco use, reduce tobacco-related health disparities, and save lives.”

Black civil rights organizations also wrote to the agency, saying that menthols have taken a disproportionate toll on the Black community. Since smoking increases the risk for severe Covid-19, the urgency of the situation has increased, they wrote.

Michael R. Bloomberg has campaigned and given money in support of a ban on flavored e-cigarettes and tobacco. He is the majority owner of Bloomberg LP, the parent company of Bloomberg News.

(Updates with details throughout)

--With assistance from Corinne Gretler.

To contact the reporter on this story:
Tiffany Kary in New York at

To contact the editors responsible for this story:
Anne Riley Moffat at

Paula Dwyer, Richard Clough

© 2021 Bloomberg L.P. All rights reserved. Used with permission.