WASHINGTON — Advocates of a federal ban on menthol cigarettes have spent the better part of the last decade trying everything — from federal lawsuits to holding mock funerals outside the White House — to convince Washington policymakers to remove the minty substance from cigarettes.
Now, it seems, advocates may just have to sit around and wait.
STAT spoke to several of the leading advocacy groups pushing for a federal ban on menthol about what comes next after HHS Secretary Xavier Becerra’s announcement Friday that regulators will need “significantly more time” before finalizing the Food and Drug Administration’s 2022 proposal to ban the substance after receiving backlash from certain civil rights and criminal justice reform groups.
While the Biden administration has not said explicitly that the delay was prompted by fear of pushback from potential Biden voters in the upcoming presidential election, several groups acknowledged that they don’t expect to see major action until after November.
“We certainly hope that if President Biden is reelected, that he wakes up the morning after the election and officially approves it,” said Erika Sward, the assistant vice president of national advocacy at the American Lung Association. “I don’t anticipate any movement between now and the election.”
Advocates had grown worried in recent months that the ban was being slow walked by the White House after the Food and Drug Administration missed multiple self-imposed deadlines for issuing the regulation. However, the decision to issue a statement announcing an indefinite delay of the regulation caught advocates off guard.
“We were actually unfortunately left a little flat footed,” said Yolonda Richardson, the president of the Campaign for Tobacco-Free Kids. “We are a little frustrated and bemused about what they plan to do next.” (The Campaign for Tobacco-Free Kids, like STAT, receives funding from Bloomberg Philanthropies.)
The decision of whether or not to ban menthol appears to have become a political issue because of fear that a prohibition would alienate certain Black voters. Tobacco companies have helped push that message. In 2023, for example, the company behind several menthol cigarettes sold under the Marlboro brand commissioned Cornell Belcher, the former pollster for the Democratic National Committee, who is Black, to query minority voters on the issue. The poll found that “candidates risk alienating base supporters in battleground states” by banning menthol. (Other polls have found a majority of Black voters surveyed support banning menthol cigarettes.)
And while Black health groups who support the ban filed a lawsuit earlier this month in an attempt to force the Biden administration to act, even they acknowledge the lawsuit is likely to take months, if not years, to be resolved.
“While I would love someone to say you’ve been dragging your feet and you need to do something in June or July, history shows that probably will not happen,” said Phillip Gardiner, the co-chair of the African American Tobacco Control Leadership Council, which is a plaintiff in the lawsuit.
Nevertheless, advocates insist they are not giving up the fight, which began in earnest over a decade ago when Black health groups petitioned the agency to ban menthol nationwide.
“I’m in it for the long haul,” said Gardiner. “I was in the civil rights movement, and the Black power movement in the ’60s. I’m not going anywhere. We are not going anywhere. I might be pissed off, but I’ve been pissed off for a long time.”
The fight also may turn in the short term to the states, several advocates told STAT. Groups including the American Cancer Society Cancer Action Network and the American Lung Association are hopeful that the federal government’s decision will prompt states and localities to pass their own menthol bans. Katie McMahon, a principal for policy development at the American Cancer Society Cancer Action Network, said the Biden administration’s decision will serve as motivation for the group’s volunteers who have been advocating for menthol bans at the state and local level.
However, it has proven exceptionally difficult to pass such policies. Bills to ban menthol cigarettes were introduced in several states, including Hawaii, New York, and Maryland, during the 2023 legislative session. However, none of those bills ultimately was signed into law.
The most notable failure came in New York, where Democrats in the state legislature voted down a proposed ban on menthol that was vocally backed by Democratic Gov. Kathy Hochul. Tobacco companies waged a major lobbying offensive against the proposal, which included spending “hundreds of thousands of dollars on an army of top lobbyists,” according to the New York Times.
Only two states and the District of Columbia have thus far banned the sale of menthol cigarettes since Massachusetts became the first state to do so in 2020.
STAT’s coverage of chronic health issues is supported by a grant from Bloomberg Philanthropies. Our financial supporters are not involved in any decisions about our journalism.