FDA Poised by Ban Menthol and Cut Nicotine in Cigarettes; Law Suit by ASH and Others Requires Decision by April 29th
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FDA To Ban Menthol In Cigarettes
WASHINGTON, D.C. (April 28, 2021) - The Food and Drug Administration [FDA] is reportedly poised to announce that it will ban menthol in cigarettes on April 29th; a date set by a lawsuit brought by Action on Smoking and Health (ASH) and other organizations, and recently joined by the American Medical Association [AMA].
It also appears that the agency may finally move forward on a proposal dating back at least from the 1990s to restrict - possible by increments over time - the amount of nicotine which can be contained in cigarettes to a level that cannot satisfy smokers with an established addiction, much less trigger addictions in new teen smokers.
Such a move would prevent virtually all of the 1,600 children who try smoking for the first time every day from becoming addicted, and assist the great majority of established smokers who already want to quit to be so, says public interest law professor John Banzhaf.
Banzhaf, the founder of ASH, has fought the use of menthol in cigarettes for dozens of years, and brought the law suit which first provided the basis for the FDA to declare nicotine to be an addictive as well as a deadly drug, contrary to the conclusions of the first Surgeon General's report on smoking.
Finally banning menthol from cigarettes, because of its very strong appeal to African Americans, and especially young Black smokers, would save many thousands of lives; more each year than gun control and police reform efforts, says Banzhaf, and spokespersons for other organizations.
Preventing Black Deaths
Indeed, if menthol had been banned along with all other cigarette flavors ten years ago, some 17,000 premature Black deaths would have been prevented, and half a million African Americans would not have started smoking, he notes.
Some 85% of Black smokers, including many teens, smoke menthol brands. Of the estimated 34.1 million current adult smokers (14%), more than half - nearly 20 million - smoke cigarettes flavored with menthol.
Menthol makes it easier for kids to start smoking because the cooling sensation in tobacco products masks the harshness of the smoke. Also, some studies have shown that menthol also acts as a mild anesthetic.
In addition, menthol makes the product far more deadly. According to the FDA, menthol makes it easier to become addicted to the nicotine, and much harder for all users to quit, than plain tobacco.
As the New York Times noted, although growing pressure from the Black Lives Matter movement, the confirmation of Xavier Becerra (known for aggressive action against tobacco and e-cigarette companies) as head of HHS (which oversees the FDA), more than 120 jurisdictions (including Massachusetts and California) banning menthol on their own, the election of a new president with strong support from the African American community, and increasingly vocal demands from the Congressional Black Caucus and other African American organizations, are all playing a role, it is a lawsuit originally brought by Action on Smoking and Health [ASH] and African American Tobacco Control Leadership Council [AATCLC] which may finally break the decades-long log jam.
UN Asked To Investigate The Lethal Racist Loophole
Moreover, almost 100 civil rights and public health organizations have just formally asked the United Nations, through its U.N. Human Rights Council, to investigate what has been called the lethal racist loophole as a violation of fundamental human rights.
As Banzhaf, who has been called "The Man Behind the Ban on Cigarette Commercials, recently announced, a "lethal racist loophole," which kills more African Americans each year than all police shootings, is apparently about to be closed.
As the Washington Post recently reported, the FDA will soon rule on whether to ban all flavored cigarettes "in response to a lawsuit by the African American Tobacco Control Leadership Council and Action on Smoking and Health."
The American Medical Association [AMA] recently added its huge fire power to this law suit brought by these two antismoking organizations in an effort to force the FDA to finally ban the sale of cigarettes flavored with menthol because they have a special appeal to - and help addict and kill - children who are African American.
Some 85% of Black smokers, including many teens, smoke menthol brands. Of the estimated 34.1 million current adult smokers (14%), more than half - nearly 20 million - smoke cigarettes flavored with menthol.
Banzhaf, "a Driving Force Behind the Lawsuits That Have Cost Tobacco Companies Billions of Dollars," has been fighting what the San Francisco Public Library called the “Tobacco Industry’s [History of] Targeting of the Black Community; From Chattel Slavery to Menthol Slavery” for dozens of years.
The Menthol Loophole
In 2009, the federal Family Smoking Prevention and Tobacco Control Act [FSPTCA] created what has been called the "menthol loophole" when it banned all other flavorings from cigarettes.
But the statute gave the FDA the power to add menthol to the flavoring ban, and an FDA Advisory Committee recommended just such a ban in 2011.
The FSPTCA thus included a lethal racist loophole just waiting to be closed by the FDA, charges Professor Banzhaf, who fought along with former-HHS Secretary Louis W. Sullivan against attempts to spare menthol cigarettes from the ban because they are overwhelmingly used by African Americans.
An estimated 80% of African-American teenage smokers choose menthol brands, notes Banzhaf, who argues that Black lives don't matter to the tobacco industry, except as a way to make money.
That’s why this lethal “racist” loophole has been condemned by the Congressional Black Caucus, the National African American Tobacco Prevention Network, and many former HHS secretaries.
The FDA Is Ignoring A Much More Serious Problem
With all the emphasis and concern about black youngsters being killed by police, the FDA is ignoring and even exacerbating a much more serious problem in terms of lives lost, suggests Banzhaf.
For example, AATCLC has complained: “For every black man murdered, there are 6-8 dying of tobacco diseases. We can’t wait until what’s happening with police brutality is solved to address thousands dying from cigarettes.”
Similar concerns were echoed by the National African American Tobacco Prevention Network which protested that "there is a social injustice in the predatory marketing and death related to menthol in our community.”
Indeed, it’s nothing less than institutional racism, declares Natasha Phelps, Staff Attorney/Lead Minnesota Policy, Public Health Law Center: “The tobacco industry has long taken advantage of institutional racism. The scale of the problem is so great that we identify menthol as our commercial tobacco team’s top priority."
Banzhaf, who has also been called "The Law Professor Who Masterminded Litigation Against the Tobacco Industry," argues that this legal action is a small step towards achieving Health Equity, a concern dramatized by the recent revelation that African Americans are dying at a far higher rate of COVID-19 than other segments of the population.
