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Tobacco industry has fueled false claims that eliminating menthol cigarettes will put Black Americans at greater risk from law enforcement

The Food and Drug Administration (FDA) proposal to end the sale of menthol cigarettes and flavored cigars has the potential to save millions of lives, especially those of Black Americans who have long been targeted with predatory marketing and use these products at disproportionately high rates.

As of October 2023, the proposal to remove menthol cigarettes and flavored cigars from the market has been finalized by the FDA and sent to the White House Office of Management and Budget for review, marking a momentous step toward a major public health victory. This development has been long-awaited since the FDA announced the proposal in April 2021. 

Menthol has been repeatedly exempted from legislation on flavored tobacco products, the result of massive tobacco industry lobbying efforts that have included making strategic financial contributions and working to align itself with black leaders and politicians. The tobacco industry has attempted to spread fear that a rule to eliminate menthol products would unfairly target Black Americans and would lead to further criminalization of the community. R.J. Reynolds, the maker of the leading menthol cigarette brand Newport, recruited prominent Black leaders, including civil rights activist Rev. Al Sharpton, to host town halls across the country on the subject. The public health community criticized the town halls as deceptive and exploitative. The tobacco industry also implemented a media blitz of television and social media ads in 2020 to fight a California bill prohibiting the sale of most flavored tobacco products, arguing that it would increase racial profiling by law enforcement, “giving special treatment to the rich, and singling out communities of color.”

But the FDA has made it clear since April 2021 – when it pledged to begin within a year the process of proposing rules to prohibit the sale of menthol cigarettes and flavored cigars – that enforcement of the rules would be focused on manufacturers and retailers, not individual consumers. The agency reiterated in its April 28 announcement that it “cannot and will not enforce against individual consumers for possession or use of menthol cigarettes or flavored cigars” and that its proposed product standards would “only address manufacturers, distributors, wholesalers, importers, and retailers who manufacture, distribute, or sell such products within the U.S. that are not in compliance with applicable requirements.”

False claims that eliminating menthol will lead to greater risk from law enforcement for Black Americans are protecting the commercial gain of the tobacco industry, which – despite its rhetoric that it is part of the public health solution to end smoking – historically obstructs and delays public health policies to reduce tobacco use.

The tobacco industry’s predatory marketing

Do tobacco companies target African Americans?

The industry has strategically and aggressively targeted the Black community with menthol cigarettes for decades, including placing more advertising in predominantly Black neighborhoods and in publications that are popular with Black audiences, as well as appropriating culture in marketing, including sponsoring events such as jazz and hip-hop festivals. Today, nearly 9 in 10 Black smokers use menthol cigarettes. Tobacco companies have also targeted the Black community with flavored cigars. Black American youth have the highest rates of cigar smoking.

“The truth is that menthol cigarettes and the death of Mr. Garner are linked by his plaintive cry of ‘I can’t breathe,’ part of a long history of systemic targeting of Black people,” wrote Keith Wailoo, a professor of history and public affairs at Princeton University, in an op-ed for The New York Times. “The story of Big Tobacco and menthol is a rolling tragedy where the violence occurs off camera. It is a slower extraction of health and wealth, playing out not over minutes but decades and generations. But make no mistake, menthol cigarette smoking often leads to decimated lungs, emphysema, cancer and a range of other ailments, ending too often in a tragic plea for air.”

Black smokers have a harder time quitting smoking and die at higher rates from tobacco-related diseases such as cancer, heart disease, and stroke. The FDA has stated that “324,000 to 654,000 smoking attributable deaths overall (92,000 to 283,000 among Black Americans) would be avoided over the course of 40 years.”

“The proposed rules would help prevent children from becoming the next generation of smokers and help adult smokers quit. Additionally, the proposed rules represent an important step to advance health equity by significantly reducing tobacco-related health disparities,” said Health and Human Services Secretary Xavier Becerra.

Menthol cigarettes have long been an on-ramp to smoking for teens. Studies show that youth and young adults are more likely to try a menthol cigarette as their first cigarette rather than a non-menthol cigarette, and those who first start with a menthol cigarette are more likely to continue smoking. In 2023, 40.4% of middle school and high school students who currently smoked cigarettes reported using menthol cigarettes, according to the National Youth Tobacco Survey.

Preventing loopholes the industry can exploit

Now that the proposed rules have been released, a public comment period must conclude before they become final. It is expected that tobacco companies will continue to fight these rules, including by exploiting loopholes and skirting the law through clever product engineering or marketing tactics. In the EU, where menthol cigarettes are eliminated, but not flavored cigars, companies exploited a lengthy implementation period to introduce products that didn’t say “menthol” but still contained significant amounts of it. In the U.S. tobacco companies have already tried to dodge local sales restrictions on flavored products by using “concept” flavors, in which vague, non-characterizing descriptions on packages – like Ice, Green and Blue Mix – communicate a flavor profile without naming a specific flavor designation.

Robin Koval, former CEO & President of Truth Initiative, has called for the FDA to “act with expediency throughout the comment and review period to issue a final rule that rapidly removes these products from the market.” Truth Initiative research shows most adults (56.4%) support a federal rule to remove menthol cigarettes. Support was especially strong among African Americans (60.5%) and other groups who have been targeted by the tobacco industry, including women (62.5%) and Hispanic/Latinos (69.3%).

“The impact on public health of the removal of menthol as a characterizing flavor in tobacco would be phenomenal. And it would be one of our strongest measures to protect public health probably in this century,” said Carol McGruder, founding member and co-chair of the African American Tobacco Control Leadership Council.

This article was originally published on May 23, 2022.