A ban on menthol cigarettes will save lives, experts say. It’s not that simple.
The Biden administration is under pressure to ban menthol cigarettes, and for good reason: A menthol ban will probably save hundreds of thousands of lives, many of them Black lives.
A ban would be the biggest change to tobacco regulation in years. Menthol cigarettes account for more than a third of all cigarette sales in the US, according to the CDC. Of African Americans who smoke, about three in four choose menthol.
In a 2020 editorial in the journal of Nicotine and Tobacco Research, scholars Cristine Delnevo, Ollie Ganz and Renee Goodwin describe a menthol ban as “a social justice issue” that “could have monumental implications for both the short- and long-term physical and mental health of communities of color.”
It’s true that the tobacco industry has targeted Black communities with marketing for menthol cigarettes. But Black smokers might well object to the claim that selectively banning the cigarettes they like advances social justice.
The FDA has been told by a federal judge to respond by April 29 to a citizen petition seeking a menthol cigarette ban that was filed back in 2013. If the agency recommends a ban, the decision would move to the White House.
Why ban menthol cigarettes?
The case for a menthol ban is straightforward. Tobacco companies flavor cigarettes with menthol, which creates a cooling sensation to reduce the harshness of smoke, as a way to attract first-time smokers. There’s evidence, though not much, that menthol smokers find it harder to quit. Black people are more likely to die from smoking-related diseases than are whites, the CDC says.
“Ending the sale of menthol cigarettes…will stop the tobacco industry’s predatory marketing and save lives, especially Black lives,” says the Campaign for Tobacco-Free Kids.
Health and anti-smoking groups have urged the FDA to propose a ban on menthol cigarettes. So have the attorneys general of 23 states. When the Truth Initiative, an anti-smoking group, polled Americans in 2018, most adults (56.4%) and a strong majority of African-Americans (60.5%) said they supported a menthol ban.
A few states have already acted. In 2019, Massachusetts prohibited the sale of all flavored tobacco products, including menthol cigarettes, cigars and e-cigarettes. California has done so, too, but tobacco companies financed a successful effort that will give voters a chance to repeal the law in 2022.
The vast majority of tobacco scientists and public health experts appear to support ban on menthol combustible tobacco. Too many people still smoke, they argue. Smoking accounts for an estimated 480,000 American deaths a year.
“Current stop-smoking treatments are really still no match for the highly addictive and efficient nicotine delivery system of the cigarette,” says Mike Cummings, a veteran tobacco-control expert and professor at the Medical University of South Carolina.
“A menthol ban at the federal level is long overdue,” says Danny Giovenco, a behavioral scientist at Columbia who has studied the marketing and retailing of tobacco products in marginalized communities.
“I believe that a menthol ban would be ethical, appropriate and effective,” says Kathleen Hoke, a law professor at the University of Maryland who has studied flavored tobacco products.
Still, the Obama and Trump administrations both declined to ban menthol. They apparently worried about pushback from tobacco growers in North Carolina and cigar makers in Florida. The tobacco industry has also cultivated influence for years with Black members of Congress.
While The Truth Initiative poll found that most African-Americans favor a ban, only 28.5 percent of menthol smokers like the idea. (They may express a desire to quit, as many smokers do, but they want to do so on their own terms.) It’s hard to know how they will respond to a ban.
Preliminary evidence is emerging from Canada, where seven provinces banned menthol between 2016 and 2018. In Ontario, about one in four daily menthol users (24%) had succeeded in quitting a year later, according to a study in Tobacco Control. A similar study spanning the seven provinces found that slightly fewer (21%) had quit. The majority of menthol smokers switched to conventional cigarettes or kept smoking menthol brands, which are sold on First Nations Reserves.
It’s a mistake to generalize from a couple of Canadian studies, but Michael Chaiton, the lead author of the Ontario research, tells me that getting 20% to 25% of menthol smokers to quit is a big step forward. If a US ban brought about similar quit rates, “you would expect to see roughly 2 million people quit smoking,” Chaiton says.
In a press release, Geoffrey Fong, the lead investigator of the seven-province study, said: “The enormous success of the Canadian menthol ban makes it even clearer now that the U.S. should finally ban menthol.”
That said, support for a menthol ban is growing as other drugs are being decriminalized and legalized. One in three Americans now live in states where marijuana is legal. Civil rights groups, libertarians and politicians, including VP Kamala Harris, increasingly recognize that the war on drugs has filled America’s prisons and jails but done little to curb drug use.
To some critics, the menthol ban brings to mind the death of Eric Garner in New York in 2014. Garner, who had been previously arrested for selling untaxed cigarettes, died from an officer’s chokehold, but was confronted by police as part of a “strategy to crack down on the sort of disorder that, to the police, Mr. Garner represented,” as The New York Times reported.
Criminalization of menthol cigarettes “really scares me,” Maritza Perez, director of national affairs at the Drug Policy Alliance, tells me. “It will give law enforcement another excuse to harass, surveil and police people of color,” she says. “This will have tremendous racial disparities.”
Last year, the Drug Policy Alliance, the ACLU and the Center for Popular Democracy wrote that “recent history shows us that drug prohibitions and bans increase negative interactions between law enforcement and people of color.” In Massachusetts, there’s limited anecdotal evidence of a black market in menthol smokes.
Defenders of the menthol ban point out that criminal penalties would apply only to manufacturers and sellers, not individual smokers. They doubt that a large-scale, profitable black market would arise. “It’s very hard to set up illicit markets of any size,” says Eric Lindblom, a former FDA executive who is now a senior scholar at Georgetown.
Columbia’s Daniel Giovenco, who brings a social-justice lens to his tobacco research, acknowledges the concerns about police harassment and mass incarceration. “But we have to weigh that against the tens of thousands of menthol smokers who die or get sick every year,” he says.
The ACLU and Drug Policy Alliance also argue that so long as smokers do not harm others, they should have the freedom to decide what chemicals they put into their bodies — even if they do harm to themselves. Some people choose to smoke, knowing the risks; the voices of smokers are noticeably absent from this debate.
By contrast, anti-tobacco groups like Action on Smoking and Health depict smokers as helpless, unable to resist the predatory marketing of Big Tobacco. “We view smokers as victims of a calculated industry effort to addict future generations,” says Laurent Huber, ASH’s executive director.
Are bans on vaping next?
If anti-tobacco groups succeed in banning menthol cigarettes, they’ll surely step up efforts to ban all flavored tobacco products, including e-cigarettes, which, like cigarettes, contain nicotine. Campaigns against vaping have divided the tobacco control world. [You can read my deep dive in the Chronicle of Philanthropy in the controversy surrounding Bloomberg Philanthropies, the Campaign for Tobacco-Free Kids and their opposition to flavored e-cigarettes.]
Studies show — and former smokers tell me — that many smokers use e-cigarettes to give up smoking. If menthol cigarettes are banned, today’s menthol smokers would be best off if they quit altogether. But they’d be better off vaping than continuing to smoke.
The prospect of a ban on flavored vapes worries some veterans of the anti-smoking movement. In a letter to the FDA, Tom Miller, the Iowa attorney general and former board chair of the American Legacy Foundation (now the Truth Campaign), Cheryl Healton, the founding president of Legacy who is now dean of the school of public health at NYU, and a dozen or so others say that they fully support for a ban on menthol cigarettes. But they go on to urge FDA not to push forward with a blanket ban on menthol and other flavors in e-cigarettes:
Emerging evidence suggests that it (a blanket sales ban) could potentially damage public health by reducing the appeal of lower risk non-combustible tobacco and nicotine products that can serve as substitutes for cigarettes and other combustible tobacco products.
These experts are saying that a menthol ban because would save lives. Their fear is that a ban on flavored vapes, by making it harder for smokers to quit, would do just the opposite. Regulators, please, proceed with caution.