The push for a federal ban on menthol cigarettes has been a years-long effort, and just as it seemed that advocacy groups were inching toward progress, the proposed prohibition by the U.S. Food and Drug Administration was once again put on hold in March.
Backers of the ban say the delay is likely driven by White House concerns over its impact on the presidential race in a crucial election year. The Biden administration is reportedly putting the ban on ice because it’s worried about how it might sway African American voters, who disproportionately smoke menthol cigarettes.
The tobacco industry has long influenced the African American community, said Kelsey Romeo-Stuppy, managing attorney for the anti-smoking group Action on Smoking and Health, or ASH. “This is pressure coming from the [tobacco] industry, but I do think the White House must be concerned about the re-election.”
In the past, previous actions on menthols have been hampered by clashing political interests and the tobacco industry’s influence. The most recent delay is set against the backdrop of the tight 2024 presidential race and the Democratic party’s concerns about President Joe Biden’s bid for re-election. Black voters have historically voted Democrat, but recent analyses show an erosion of support for the party, with GOP nominee Donald Trump poised to win more Black votes than he did in 2016 or 2020.
Melvin Poindexter, a member of the Democratic National Committee for Massachusetts, said he doesn’t think the menthol cigarette ban is “one of the major priorities in terms of issues impacting the voters, particularly voters of color.” While Black communities are affected by menthol cigarettes, he added, other more pressing issues supersede the ban and are more likely to swing voters.
But he also highlighted the irony of the conversation around the impact menthol cigarettes have on the election and its historical connection. In the past, as some say is the case today, the tobacco industry had a heavy hand in political campaigns. While on campaign trails, political pundits distributed menthol cigarettes to build Black support for specific candidates, Poindexter said.
Menthol cigarettes have “always been used as a means of trying to motivate Black participation in voting but never emphasizing the negative impact in terms of health on those Black activism voters,” he added.
The tobacco industry has long marketed menthol as a “smoother,” healthier alternative due to its cooling effect, specifically targeting African Americans. But the flavoring can increase dependence in young people and make it harder to quit smoking, according to the Centers for Disease Control and Prevention.
Advocacy groups like ASH say menthol cigarettes should not have been left on the market when the FDA banned all other flavored smokes in 2009. While smokers of all backgrounds use menthol cigarettes, African Americans are more likely to reach for them, with 9 in 10 African American smokers opting for menthol.
ASH was among a group of advocacy organizations that sued the U.S. government in April over its inaction on menthol cigarettes. In 2020, they sued the FDA for a similar reason but later suspended that first lawsuit when the FDA said it would institute a menthol rule in August 2023. The process seemed to be moving forward, and the FDA even drafted an ordinance that would “significantly reduce disease and death from combusted tobacco product use, the leading cause of preventable death in the U.S.” But momentum suddenly halted.
The FDA pushed its self-imposed deadline to the end of 2023 and again to March 2024. When the FDA passed its latest March deadline, the groups sued once again in April in hopes of getting a federal ban on menthol cigarettes in place.
The biggest hurdle, Romeo-Stuppy said, is that it’s unclear what the hold-up is. The process “has not been entirely transparent.”
“What’s interesting to me is that they say they are concerned that if they [instituted] a law or an ordinance that would remove menthol from the marketplace, that Black voters may not come out for Biden,” said Phillip Gardiner, one of the co-chairs of the African American Tobacco Control Leadership Council, which sued the FDA alongside ASH. “The problem is that removing menthol would save Black lives.” The FDA has pointed to studies showing that a ban on menthol cigarettes would save over 600,000 lives, and over 250,000 of those lives will be African American. Gardiner said his organization and other advocacy groups have received support from the NAACP, National Council of Negro Women and the National Medical Association, among others, but none have the same pull as the tobacco industry.
“There’s an inordinate amount of influence of the tobacco industry and the Biden administration,” said Gardiner. He added that although the White House may say its concern is that Black voters won’t turn out, “clearly the majority of major African American organizations are in support of removing menthol from the marketplace.”
Humayun Morshed, secretary of the Boston Convenience Store Owners Association, said it’s unfair that menthol cigarettes have been singled out amongst all other harmful-to-health substances.
“We live in a free country. Everybody has their own opinion,” Morshed said, adding that he and other convenience store owners want to see a “fair game” for everyone.
While the menthol cigarette ban in Massachusetts, the first state to outlaw the sale of all flavored tobacco products in 2020, has not unduly affected convenience store revenue, Morshed said, it has spawned an illicit market.
People have turned to online stores or begun to buy menthol wholesale to sell on the streets. Some even cross state lines just to acquire menthol cigarettes. The Massachusetts menthol ban also increased smoking among Black women, according to a 2023 research letter.
“The only way there could be an illicit market is if they continue to produce menthol cigarettes in Virginia and North Carolina,” said Gardiner. If the ban were to go into effect, there would be no opportunity for an illicit market to thrive.
In a statement to the Bay State Banner, Dr. Bisola Ojikutu, commissioner of public health and executive director of the Boston Public Health Commission, said the agency’s Boston Tobacco Control Program regularly conducts inspections and compliance checks to enforce regulations on flavored cigarettes.
The BPHC, she said, collaborates with the state Department of Revenue and the Boston Police Department to respond to unauthorized retail sales and investigate illegal tobacco sales respectively.
Ojikutu added that, according to state-level data, “smoking is at a historic low” in Massachusetts, and the 2020 prohibition has contributed to a steep drop in youth cigarette smoking.
“Adoption of a similar policy at the federal level would reduce tobacco use, particularly within the African American community,” said Ojikutu.
Although advocacy groups are pushing the FDA to institute its proposed federal-level ban on menthol cigarettes, the ordinance is flawed, Gardiner said.
The ban would still allow for the production of flavored tobacco products for international export and would allocate one year for the phasing out of menthol products, which is too long according to Gardiner.
“Let’s just be clear that removing menthol cigarettes from the marketplace would save hundreds of thousands of African Americans’ lives,” said Gardiner. “My organization, the African American Tobacco Control Leadership Council, is going to continue the fight as it relates to this.”
