Explained: Why US wants to ban menthol cigarettes, and what ‘racial justice’ has to do with it

The US Food and Drug Administration on Thursday (April 28) issued a proposal to ban menthol cigarettes and flavored cigars, a move aimed at not just curbing smoking in the American population, but also “reducing tobacco-related health disparities”.

Menthol cigarettes see a disproportionately high usage in the African American community than by White Americans. The New York Times quoted a US government survey as saying that nearly 85 per cent of African Americans smoke menthol cigarettes, as opposed to 29 per cent of White smokers.

The FDA’s move, thus, has been welcomed by many as likely to help reduce the burden of tobacco-related ailments specifically in the Black population. However, it has also received backlash from other quarters for potentially pushing more Black smokers towards “criminalisation”.

The proposal is as yet far from the implementation stage – it has to go through rounds of public comments and objects before it can be passed, and then it is likely to run into legal challenges from tobacco companies and others.

We explain why the FDA has zeroed in on menthol cigarettes, why these cigarettes are used more by the African American community, and the debate around the proposal.

What exactly is the FDA proposal?

While some states in the US have already banned menthol cigarettes, the FDA plans to extend the prohibition countrywide.

Inviting public comments from May 5 to July 5, the FDA said it has come up with “proposed product standards to prohibit menthol as a characterizing flavor in cigarettes and prohibit all characterizing flavors (other than tobacco) in cigars.”

“The proposed rules would help prevent children from becoming the next generation of smokers and help adult smokers quit,” said Health and Human Services Secretary Xavier Becerra. “Additionally, the proposed rules represent an important step to advance health equity by significantly reducing tobacco-related health disparities.”

The proposed ban does not cover electronic cigarettes.

If the ban comes into effect, who will be penalised?

The FDA has made it clear that it “cannot and will not enforce against individual consumers for possession or use of menthol cigarettes or flavored cigars”, and the rules will only “address manufacturers, distributors, wholesalers, importers and retailers who manufacture, distribute, or sell such products.”

Why does the FDA consider menthol cigarettes especially dangerous?

The agency says menthol, with its minty taste and aroma, “reduces the irritation and harshness of smoking. This appeal and makes menthol increases cigarettes easier to use, particularly for youth and young adults. Menthol also interacts with nicotine in the brain to enhance nicotine’s addictive effects, while making it more difficult for people to quit smoking.”

The agency said “modeling studies have estimated a 15 per cent reduction in smoking within 40 years” if menthol cigarettes were banned.

The high rate of usage of these cigarettes means the proposed ban will affect a large share of the smoker population, specially young adults and racially disadvantaged groups, who are less likely to be able to afford counseling and institutional help to quit.

The FDA says that in 2019, “there were more than 18.5 million current menthol cigarette smokers ages 12 and older in the US.”

Apart from menthol, all other flavors in cigarettes were banned in the US in 2009.

How did menthol cigarettes become more popular among Black smokers?

According to various activist groups, over decades, tobacco advertising companies used “predatory” and “targeted” to lure Black consumers towards menthol cigarettes, which are harder to quit and more harmful to health.

The US public health agency, Centers for Disease Control and Prevention (CDC), says, “Historically, the marketing and promotion of menthol cigarettes have been specifically targeted toward African Americans through culturally tailored advertising images and messages… the tobacco industry’s attempts to maintain a Positive image among African Americans have included such efforts as supporting cultural events and making contributions to a minority higher education institutions, elected officials, civic and community organizations, and scholarship programs.

Tobacco companies have historically placed larger amounts of advertising in African American publications, exposing African Americans to more cigarette ads than Whites.”

The efforts have extended beyond advertising to include marketing techniques too. Again according to CDC, tobacco firms use “price promotions such as discounts and multi-pack coupons—which are most often used by African Americans and other minority groups, women, and young people—to increase sales”, areas with “large racial/ ethnic minority populations tend to have more tobacco retailers”, while “menthol products are given more shelf space in retail outlets within African American and other minority neighborhoods.”

Smoking also hits the community harder than their White counterparts – the CDC says that although “African Americans usually smoke fewer cigarettes and start smoking cigarettes at an older age, they are more likely to die from smoking-related diseases than Whites.”

Thus, when the FDA announced its ban proposal on Thursday, civic organization National Association for the Advancement of Colored People (NAACP) called it a “victory for Black America”.

NAACP president Derrick Johnson was quoted as saying by The New York Times, “These products have killed our children, our parents, our brothers, sisters and livelihoods. After fighting against deadly menthol products for decades, today is a victory for Black America.”

Criticism of the proposed ban

Tobacco firms have disputed the scientific evidence that menthol cigarettes are more harmful than regular cigarettes. Other critics have claimed that the ban will cause the government significant revenue loss, while some have said it will harm more than help African Americans.

Altria, one of the largest tobacco companies in the world, said “harm reduction, not prohibition, is the better path forward”. “Taking these products out of the legal marketplace will push them into unregulated, criminal markets that don’t follow any regulations and ignore minimum age laws,” Altria said in a statement.

Think Tank Tax Foundation has claimed that if the ban comes into effect, the federal and state governments together “stand to lose more than $6.6 billion in the first full year following prohibition.”

Some have flagged concerns that the ban could push Black smokers towards “criminalisation”. The American Civil Liberties Union said in a statement, “There are serious concerns that the ban implemented by the Biden administration will eventually foster an underground market that is sure to trigger criminal penalties which will disproportionately impact people of color and prioritize criminalization over public health and harm reduction.”

Laws governing menthol cigarettes around the world

The first country in the world to ban menthol cigarettes was Brazil, in 2012. Canada banned these cigarettes in 2017, and the European Union in May 2020. Though the UK had left the EU by then, it too adopted the ban. Turkey, Moldova, and Ethiopia have also banned menthol cigarettes.

India has not banned the sale of menthol cigarettes.

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Tobacco regulation laws in India are covered under Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003, or COTPA, and include “restrictions on advertising, promotion and sponsorship of tobacco products ; prohibiting smoking in public places; prohibiting sale to and by minors; and prohibiting sale of tobacco products within a radius of 100 yards of educational institutions, and through a depiction of specified pictorial health warnings on all tobacco product packs.”

In 2019, the Center banned electronic cigarettes. In addition, different states have their own rules in place banning hookah consumption, including flavored hookahs, in public places.

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