Menthol Ban in Cigarettes Likely Soon – NYT and WaPo; Lengthy Battle Ending, Legal Action Forcing FDA’s Hand
Menthol In Cigarettes Could Soon Be Banned
WASHINGTON, D.C. (March 22, 2021) - The long-running battle to prohibit the use of menthol in cigarettes may soon be successful, according to the New York Times, the Washington Post, and a leading antismoking legal activist, as the legally mandated deadline of April 29th for a response by the FDA nears.
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As the Times notes, although growing pressure from the Black Lives Matter movement, Thursday's 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.
As public interest law professor John Banzhaf, the founder of ASH, 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 Food and Drug Administration [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."
AMA Add Fire Power The The Law Suit
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.
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.
Black lives don't matter to cigarette manufacturers, argues Banzhaf, the "Man Behind the Ban on Cigarette Commercials," who has fought against this deadly additive substance for more than 20 years.
Preventing Premature 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.
Banzhaf, the founder of ASH, and termed as "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.
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.
Banzhaf worked with Sullivan, who was also the Founding Dean of the Morehouse School of Medicine, and six other former health secretaries, in opposing an earlier proposal to exempt menthol cigarettes from proposed legislation.
At the time, former HHS secretary Joseph A. Califano Jr. blasted the exemption for menthol, saying it was “clearly putting black children in the back of the bus.”
Menthol Brands A Choice Of 80% Of African-American Teenage Smokers
An estimated 80% of African-American teenage smokers choose menthol brands, says Banzhaf.
That’s why this lethal “racist” loophole has been condemned by the Congressional Black Caucus, the National African American Tobacco Prevention Network, many former HHS secretaries, and by ASH: “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."
Other organizations noted: “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.”
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.