Help Ban Lethal Menthol Loophole

ASH HITS MISREPRESENTATIONS:
HELP BAN LETHAL "RACIST" LOOPHOLE
FROM FDA CIGARETTE REGULATION BILL

Action on Smoking and Health (ASH), America's first antismoking organization, urgently needs YOUR help to prevent the passage of a bill which, as it now stands, contains a lethal "racist" loophole which could lead to the deaths of many African Americans as well as others.
PLEASE CLICK ON: http://ash.org/menthol

Below is a letter ASH has just written to a leading proponent of the FDA bill concerning two misrepresentations about the lethal racist menthol loophole:

        We write to most respectfully correct what appear to be misrepresentations concerning the decision to exempt menthol (and not clove, peppermint, etc.) from additives which would be prohibited in cigarettes under the bill providing for FDA regulation of cigarettes [HR 1108]; a bill which therefore appears at the very least to raise racist implications.

        It appears that some have been arguing that menthol – and menthol alone, of all other additives – was chosen to be exempted only because it was the single additive which had already been used in cigarettes, unlike other possibilities such as clove, peppermint, etc. But this is false!

        Clove cigarettes have been sold and smoked in the U.S. at least since the mid 1980s when I first went on national television to alert the public to the dangers they were causing to unsuspecting teens – including death and comas. Cigarettes containing cloves as an additive continue to be sold and used in the U.S. to this very day, and I continue to speak out against them.

        Second, the argument that the exception of menthol from the bill does not discriminate against African Americans seems inconsistent with clearly established American law which recognizes that actions or laws which have the “effect or consequence” of having a discriminatory impact on Blacks may violate civil rights laws prohibiting such discrimination.

        For example, regulations which require that employees must be clean shaven have been held – although they appear race-neutral on their face – to be racially discriminatory because they have the “effect or consequence” of discriminating against Blacks who are much more likely than Whites to have facial skin conditions which make facial shaving dangerous and/or painful, and who therefore may have to wear beards.

        Similarly, a bill which barred persons who have had or were especially susceptible to sickle cell anemia could be held to constitute illegal racial discrimination because it has the “effect and consequence” of discriminating against Blacks (who are much more likely to have this disease than other races), even if that was not the intent or purpose of its proponents.

        As former ASH Trustee Dr. Louis W. Sullivan has pointed out: “Nearly 75% of African American smokers use menthol cigarettes. A recent survey found that among teen smokers, 81 percent of African Americans smoke menthol cigarettes compared to only 32 percent of Whites and 45 percent of Hispanics. We also know that 90 percent of adult smokers are hooked as teens.”

        These basic facts are certainly known to those who negotiated the text of the proposed bill – supposedly, largely in secret – and to most who support it. Thus they certainly must be aware that the “effect or consequence” of permitting cigarette companies to continue adding menthol – but not clove, peppermint, etc. – would overwhelmingly impact African Americans.

        The tragic results, as Dr. Sullivan points out, are that: “More than 47,000 blacks die each year from smoking-related diseases and thousands more are crippled by smoking-related ailments. More black women get lung cancer than breast cancer, and black men are 50 percent more likely to get lung cancer than white men.”

        Thus the inescapable conclusion is that, at the very least, the menthol loophole would have a racially discriminatory impact, and debating the bill in its current form could well raise serious racial issue just prior to critical elections in which race is already playing a major factor.

        The fact that this lethal menthol loophole was apparently negotiated without a single representative from an African American organization [ like the National African American Tobacco Prevention Network, which said ”our constituents across the country are just livid” at being excluded from any representation in negotiations on the menthol loophole”], or even of African Americans prominent in the antismoking and public health movements, only adds to that impression.

        As an organization which has long supported you and your pioneering efforts concerning smoking, we write to call these misrepresentations to your attention so that discussions on whether to leave the menthol loophole in the bill – reportedly largely to retain the support of Philip Morris – can remain focused on the issues and not on spurious arguments.

        ASH also shares the very strong objections by the Congressional Black Caucus, as well as many former HHS secretaries and others who recently said that “the bill caves to the financial interests of tobacco companies and discriminates against African Americans—the segment of our population at greatest risk for the killing and crippling smoking-related diseases.       It sends a message that African American youngsters are valued less than white youngsters.”

         Or, as Dr. Sullivan bluntly stated: "If we're banning things such as clove and peppermint, then we should ban menthol, . . . "If it doesn't happen, this bill will be discriminatory against African-Americans."

        As we also noted in our earlier letter to you, any delay caused by removing this menthol loophole could well result in an even stronger bill since it might no longer face a threatened presidential veto and a somewhat hostile Congress – factors which seem to be causing too many important concessions to be made in the hopes of insuring passage.

Yours truly,

Professor John F. Banzhaf III
Executive Director and Chief Counsel