UN Asked to Press FDA on Lethal Racist Loophole

Updated on

UN Asked to Press FDA on Lethal Racist Loophole; Almost 100 Organizations Claim Menthol Loophole is a Human Rights Issue

Get Our Icahn eBook!

Get The Full Carl Icahn Series In PDF

Q1 2021 hedge fund letters, conferences and more

Activists Formally Ask The UN To Investigate The Lethal Racist Loophole

WASHINGTON, D.C. (April 21, 2021) - Almost 100 civil rights and public health organizations have 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, notes public interest law professor John Banzhaf, the "Man Behind the Ban on Cigarette Commercials."

The organizations - which include the American Heart Association, the National Council of Churches and the International Union Against Tuberculosis and Lung Disease - complain that “The decades of well-documented racialized and predatory tobacco industry targeting of African Americans, specifically with menthol flavoring, is a human rights issue.”

The move is designed to add to growing pressure on the FDA which has until an April 29th court deadline to announce whether it will take steps to ban the use of menthol in cigarettes and, according to some sources, also limit the amount of nicotine which can be contained in cigarettes - a move which one industry analyst described as “most significant and disruptive regulatory intervention in the modern history of the tobacco industry.”

Banzhaf notes that there is precedent for involvement by the U.N. regarding the dangers of smoking. For example, he worked with others to persuade the U.N. to bring into fruition the world's first antismoking and nonsmokers' rights treaty - the Framework Convention on Tobacco Control [FCTC] - which for years largely operated out of his office.

Also, the UN’s Committee on the Elimination of Discrimination against Women - seeing it as an issue of sex discrimination - recommended that Argentina take action to change how cigarettes were marketed to women in the country.

Black Lives And Big Tobacco

Black lives don't matter to big tobacco, says Banzhaf, who began this battle against menthol many years ago with former HHS Secretary Dr. Louis W. Sullivan.

Now this 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 to the lawsuit by the FDA nears.

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 which may finally break the decades-long log jam.

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 the flavoring agent has a special appeal to - and helps addict and kill - children who are African American.

Majority Of Blacks Smoke Menthol Brands

Some 85% of Black smokers, including many teens, smoke menthol brands. Of the estimated 34.1 million current adult smokers (14% of the population), 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. In addition, some studies have shown that menthol also acts as a mild anesthetic.

Thus, 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 users to quit, than plain tobacco.

Black lives clearly don't matter to cigarette manufacturers, except when their deaths result in billions in profits, argues Banzhaf, who has fought against this deadly additive substance for more than 20 years.

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, 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.

Creation Of 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 law thus included a lethal racist loophole just waiting to be closed by the FDA, charges Professor Banzhaf, who fought along with 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.”

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 many others.

A Discriminatory Bill

Indeed, 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 Blacks 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, the African American Tobacco Control Leadership Council (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 but important 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.