Biden Admin Expected To Propose Ban On Menthol Cigarettes, ACLU Says It Will Disproportionately Affect Communities Of Color

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The Biden administration is expected to announce a proposal to ban menthol cigarettes later this week, a move that some groups have been wanting for a long time, while others say it will lead to more incarceration and negatively impact communities of color.

As reported by The Washington Post, “The administration also is poised to say it will seek to ban menthol and other flavors in mass-produced cigars, including small cigars popular with young people, according to administration officials familiar with the situation who spoke on the condition of anonymity because they are not authorized to discuss it publicly.”

The U.S. Food and Drug Administration (FDA) is coming up on a deadline to respond to a citizen petition from 2013 that sought to make the agency prohibit menthol as a characterizing flavor in cigarettes. 

The petition stated that “…Congress banned the sale of flavored cigarettes in 2009. But Congress made one exception to the flavor ban, deferring action on the most popular of all flavors — menthol — and directing the U.S. Food and Drug Administration to decide whether the continued sale of menthol cigarettes is ‘appropriate for public health.’”

The petition claimed: 

Prohibiting the sale of menthol cigarettes is one of the most powerful steps the FDA can take to improve America’s health. In light of the scientific evidence, there is no justification for continuing to give special treatment to the most deadly of all cigarette flavors. Menthol cigarettes are the source of addiction for nearly half of all teen smokers. Menthol increases the palatability of smoking, especially among youth and members of racial and ethnic populations, and menthol increases the difficulty of quitting.

A complaint was filed against leaders of the FDA, Center for Tobacco Products, and U.S. Department of Health and Human Services to request a response to the citizen petition submitted by the African American Tobacco Control Leadership Council. The suit directed them to decide whether or not to add menthol to the list of banned flavors. It also required an evaluation be conducted in order to look at tobacco product standards “to determine whether such standards should be changed to reflect new medical, scientific, or other technological data[.]”

Certain groups are split on the ban, with some seeing it as a way to help reduce the addiction to cigarettes among communities of color, while others see it as a move that will lead to broader incarceration levels. 

The Post reported that ten civil rights and black health organizations recently sent a letter to Health and Human Services Secretary Xavier Becerra pushing for the ban. Signers included the African American Tobacco Control Leadership Council, the NAACP, and the National Medical Association, which represents black physicians, per the outlet. 

The letter said, “The predatory marketing of menthol cigarettes and other flavored tobacco products must be stopped and we should all recognize this as a social justice issue, and one that disproportionately impacts youth and communities of color[.]” According to the Post, the “letter noted that the tobacco industry gave away free samples menthol cigarettes at gatherings in African American neighborhoods, promoted menthol tobacco through extensive advertising and sponsored educational and cultural events, such as jazz festivals, popular with the Black community. Throughout the years, the industry also has donated generously to the political campaigns of many Black, as well as White, lawmakers.” 

The American Civil Liberties Union (ACLU) and other groups sent a letter to the Biden administration earlier this week, pushing back against a potential ban on menthol cigarettes. The groups said that such a move would “Disproportionately Impact People and Communities of Color, Trigger Criminal Penalties, and Lead to Negative Interactions with Law Enforcement.” The letter pointed to the cases of Eric Garner, Michael Brown, and George Floyd as situations where cigarettes were involved, adding that “well-intentioned efforts to continue to reduce death and disease from tobacco products must avoid solutions that will create yet another reason for armed police to engage citizens on the street based on pretext or conduct that does not pose a threat to public safety.” The groups argued that a ban on menthol cigarettes “would disproportionately impact communities of color, result in criminalization of the market, and exacerbate mass incarceration.”

According to the FDA, “Menthol is a flavor additive with a minty taste and aroma that is widely used in consumer and medicinal products due to its reported cooling or painkilling properties.” When it is put into cigarettes, menthol can lessen the irritation that comes from smoking, but the agency says that some research suggests cigarettes containing menthol might be harder to quit than regular cigarettes, “particularly among African American smokers.”

The FDA stated that over 19.5 million people in the United States currently smoke menthol cigarettes. 85.8% of African American smokers smoke menthol cigarettes, whereas 46% of Hispanic smokers, 39% of Asian smokers, and 28.7% of white smokers use them. Menthol cigarettes are also reportedly more popular among young smokers. The FDA noted that over half of smokers between the ages of 12 and 17 smoke menthols.

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