White House Indefinitely Delays Plan to Ban Menthol Cigarettes

The Biden administration is again delaying issuance of a final rule banning the sale of menthol cigarettes.

“This rule has garnered historic attention and the public comment period has yielded an immense amount of feedback, including from various elements of the civil rights and criminal justice movement,” HHS Secretary Xavier Becerra said in a very brief statement posted Friday on the HHS website. “It’s clear that there are still more conversations to have, and that will take significantly more time.”

The statement gave no details about how long the delay might be.

Feedback on the statement, in contrast, was very quick. “The American Lung Association is deeply dismayed that the White House continues to delay the lifesaving rules to end the sale of menthol cigarettes,” Harold Wimmer, president and CEO of the association, said in a statement. “Every day that President Biden fails to finalize these rules, he loses an incredible opportunity to reduce the death and disease associated with tobacco use. Ending the sale of menthol cigarettes would have helped eliminate the dramatic health inequities in who uses tobacco products in the United States.”

“The Biden administration’s decision to delay gives the tobacco industry more time to predatorily target and hook youth as well as members of historically underrepresented communities, including Black individuals, to their deadly products,” Wimmer said. “There is no reason the White House should further delay the opportunity to address the number one cause of death among the Black community in the U.S. and to reduce the number of young people from ever trying tobacco in the first place.”

An estimated 80% of Black smokers smoke menthol cigarettes, compared with 30% of white smokers.

The proposed rule was originally announced in April 2022. At the time, Becerra said in a statement that the rule “would help prevent children from becoming the next generation of smokers and help adult smokers quit. Additionally, the proposed [rule represents] an important step to advance health equity by significantly reducing tobacco-related health disparities.”

However, the Biden administration has delayed the final rule several times recently, saying it would be published in August 2023, then pushing that date back to the end of the year, and most recently saying it would be published in March. When asked about the delays, an FDA spokesperson said in an email in January that the agency “remains committed to issuing the tobacco product standards for menthol in cigarettes and characterizing flavors in cigars as expeditiously as possible; these rules have been submitted to OMB [the Office of Management and Budget] for review, which is the final step in the rulemaking process. As we’ve made clear, these product standards remain at the top of our priorities.”

“Regulations such as product standards go through an extensive rulemaking process, which includes interagency review,” the spokesperson said. “At this stage in rulemaking, the FDA is limited from further discussions about the rules before they are published.”

Rep. Robin Kelly (D-Ill.), chair of the Congressional Black Caucus Health Braintrust, said in a statement Friday that she was “deeply disappointed that the FDA has chosen to abandon its established plan to ban menthol cigarettes. The FDA’s experts have been clear that menthol cigarettes are harmful to public health. This is a commonsense plan which could have saved hundreds of thousands of lives.”

Kelly said the high rate of menthol cigarette use among Black smokers “is the direct result of a deliberate decision made decades ago by the tobacco industry to target Black Americans with marketing for menthol cigarettes. In the 1950s, fewer than 10% of Black smokers used menthol cigarettes. The increased use of menthols among Black Americans has contributed to the Black community disproportionately suffering from tobacco-related diseases such as heart disease, lung cancer, and strokes.”

The National Medical Association (NMA), which represents more than 50,000 African-American physicians, also panned the decision. “We are disappointed with the action of the Biden administration. We will continue to have Black children targeted for addiction and the health and lives of our patients ruined as long as the administration delays a total ban on menthol,” Mark Mitchell, MD, chair of the association’s Council on Environmental Health and Climate Change, said in a statement.

The NMA noted that “the CDC estimates that 40% of premature deaths due to menthol cigarette smoking in the U.S. from 1980 to 2018 were Black Americans. Additionally, Black men have the highest rates of lung cancer fatalities.”

At a “menthol funeral” rally held in Washington in January, advocates dismissed the idea that banning menthol cigarettes from the market would result in increased police harassment of Black people — in particular, Black smokers. Policies such as the one being considered by the Biden administration “uniformly do not penalize the purchase, the use, or the possession of these products,” Kevin O’Flaherty, Northeastern Region director of the Campaign for Tobacco-Free Kids, told MedPage Today in an interview. “So you could smoke menthol cigarettes in front of the police station, and you’re not breaking the law. The only people who would be breaking laws are the retailers who would have sold that product.”

In Massachusetts, for example, which banned sales of all flavored tobacco products — including menthol — in 2020, no such problem has emerged, he said. Instead, “it’s working extraordinarily well. Smoking rates have gone down among adults and youth, both in menthol- and non-menthol-flavored cigarettes.”

Another possible reason given for the delay in issuing the final rule is that the Biden campaign may be afraid that issuing the rule could alienate Black voters at a time when Biden is seeking reelection. But that idea could backfire, warned Michael Emanuel Smith, a Detroit resident who came to Washington for the rally. “I recently turned 18 and will be voting for the first time,” he said. “I will be waiting to see if [the president] will stand up to make me free of menthol.”

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