The U.S. Food & Drug Administration is currently deliberating on whether to prohibit menthol-flavored cigarettes. The initial proposal for this ban was made in 2022, but it is yet to be finalized, leading certain activist groups to take legal action. (Consider whether these groups have the legal standing to do so.)
Both the FDA and the proponents of the menthol cigarette ban argue that it would be beneficial for public health. However, the supporting medical research is inconclusive on whether such a ban would effectively reduce smoking rates or prevent smoking initiation. Some studies suggest that individuals using menthol cigarettes may switch to menthol or other flavored e-cigarettes. This presents a challenge as the FDA has not approved any non-tobacco-flavored e-cigarettes thus far.
In an article on Slate, Jacob Grier explores the politics surrounding a potential menthol ban and raises concerns about the FDA basing its decision on potentially flawed research.
The FDA’s proposed ban on menthol heavily relies on a study from 2021, which predicts that a federal ban could prevent approximately 650,000 premature deaths by 2060, demonstrating significant public health benefits. However, the study’s modeling assumes that many menthol cigarette smokers would transition to e-cigarettes rather than traditional unflavored cigarettes, with the condition that e-cigarettes are available in menthol flavors. The issue arises as the FDA has not authorized any e-cigarettes for sale in menthol or any other non-tobacco flavor.
Cliff Douglas, an adjunct professor at the University of Michigan and president of the Foundation for a Smoke-Free World, is a co-author of the 2021 study. He highlights that the effectiveness of the menthol ban hinges on the availability of alternative products for menthol cigarette smokers. With authorized e-cigarettes representing only a small fraction of the market, the ban’s impact may be limited. Since Brian King’s appointment as the director of the FDA’s Center for Tobacco Products in 2022, the agency has not authorized any e-cigarettes.
This not only diminishes the efficacy of a federal menthol ban but also exposes it to legal challenges. Douglas expresses concerns about selective use of scientific data by the FDA, potentially leading to arbitrary decision-making and subsequent legal challenges. Given the FDA’s recent setbacks in tobacco-related cases, such as the overturned regulation of premium cigars, and unsuccessful challenges by e-cigarette manufacturers, there is a looming possibility of legal disputes that could reach the Supreme Court.
As previously highlighted in an article, the FDA faces challenges in regulating vaping products, and it appears that similar difficulties extend to combustible tobacco products.
