Statement on FDA’s Response in Favor of Banning Menthol

Statement of Kelsey Romeo-Stuppy, Managing Attorney at Action on Smoking and Health (ASH)

WASHINGTON, DC – April 29, 2021 –Today, we celebrate with all Americans that the Food and Drug Administration took a powerful step towards banning menthol and saving lives, especially Black lives. While a menthol ban does not go into immediate effect, our hope for a better, brighter, and healthier tomorrow starts today.

After more than a decade of inaction from the Federal government on menthol, the Biden Administration acted quickly and definitively to prioritize Black lives and to make progress towards ending the institutionalized racism African Americans face as a result of menthol cigarettes. The FDA emphasized in their statement that it “…intends to make this proposed rule one of the Agency’s highest priorities”; a priority we emphatically agree with. 

Menthol advertising violates the right to health of Black Americans, and last week, ASH and a total of 97 organizations submitted a report to the UN Committee on the Elimination of all forms of Racial Discrimination (CERD), requesting that the committee review the U.S.’ human rights record on this topic. The tobacco industry’s misappropriation of Black culture for their own monetary gain is disgusting; their misappropriation of Black culture to sell a deadly product is a violation of basic human rights, and the FDA’s decision is the beginning of the end.

While we are certain that tobacco companies will attempt to insert themselves into the upcoming rulemaking process and attempt to muddy the facts around the harms of menthol, we are equally confident that the public health community and research community will stand strong.

Unfortunately, that industry interference has already begun, with groups asking the FDA to reconsider because a menthol ban may increase police interactions with Black Americans. As advocates, we have been conscious of this concern from the beginning. We do not, and would not, support an action that criminalized tobacco. We, our co-plaintiff AATCLC, and several of the co- petitioners, signed a Joint statement Addressing Systemic Racism in the Enforcement of Commercial Tobacco Control that emphasizes this point.

The second largest tobacco corporation in the United States, RJ Reynolds, is a funder of the National Newspaper Publishers Association, the group leading the efforts against a menthol ban. RJ Reynolds is responsible for the most-sold menthol cigarette brand in the U.S., Newport.

As a community, we will not allow the industry to undermine this important process, and we have no doubt that a ban on menthol will come to fruition soon.

We thank our co-plaintiffs, the African American Tobacco Control Leadership Council (AATCLC), the American Medical Association (AMA), and the National Medical Association (NMA), the organizations behind the Citizen’s Petition, including the Public Health Law Center, as well as the legal team at Pollock Cohen, LLP for their hard work and dedication- we are proud to share in this joint victory with all of you.

With the FDA’s favorable decision today, we are one step closer toward preventing the deaths of 45,000 African Americans every year from tobacco-related diseases. Let’s remain firm in our mission and realize that goal.

Read the FDA’s complete response here (key items listed below).

Click here to read the joint press release from the co-plaintiffs and lead counsel>

The plaintiffs and partners hosted a live discussion of the results Friday, April 30^th.

Their direct media contacts are:

AATCLC: Tracy Brown, 888-881-6619 x105
AMA: Kelly Jakubek, 765-414-3862
ASH: Megan Arendt, 202-390-9513
NMA: Michael Peery, 202-347-1895

For inquiries specific to the Citizen’s Petition, please contact Joelle Lester from the Public Health Law Center.

Key Items in FDA Response

• “For the reasons discussed above, FDA intends to issue a proposed rule to prohibit menthol as a characterizing flavor in cigarettes. In addition, while FDA generally does not provide direct cessation services, FDA intends to work with HHS to enlist and collaborate with other entities at the Federal, Tribal, State and Local levels who provide support to menthol smokers who quit or want to quit as a result of a prohibition of menthol as a characterizing flavor in cigarettes going into effect. FDA therefore grants your petition in accordance with 21 C.F.R. § 10.30(e)(3).”
• “FDA intends to make this proposed rule one of the Agency’s highest priorities.”

Additional Resources

• International Tobacco Control (ITC) Policy Evaluation Project’s new research, released April 5, 2021, showing that quit rates increased in Canada following their ban on menthol. Contact Geoffrey Fong for additional details: gfong@uwaterloo.ca
  • ITC Project’s infographic evaluating the Canadian menthol ban
  • ITC Project: The Canada-Wide Menthol Cigarette Ban Did NOT Increase Illicit Purchases
• University of Bath’s Tobacco Tactics website lists all the other countries that have banned menthol and when. This policy initiative is not new.
• ASH’s resource page on how tobacco companies racially discriminate against Black Americans.
• Researchers found that stores in predominantly Black neighborhoods were up to 10 times more likely to display tobacco ads inside and outside than retailers in areas with fewer Black residents
• African American youth who smoke menthol cigarettes have greater nicotine dependence and a greater desire to smoke than non-menthol users, and therefore have a harder time quitting (source).
• 67% of overall health disparities in mortality in African American men are related to their high smoking prevalence (source).
• Joint report submitted to the United Nations Committee on the Elimination of all forms of Racial Discrimination (CERD) asking them to implore the U.S. government to take action. The report includes useful facts and statistics on menthol use in the U.S.
• Joint statement addressing systemic racism in the enforcement of commercial tobacco control, released in 2020.
• Stock photos of menthol cigarettes for use
• Stock videos of menthol cigarettes for use