FDA Will Ban Menthol Cigs: Will There Be Flavored Vapes to Switch To?

The FDA Center for Tobacco Products will begin the process of banning menthol cigarettes and flavored cigars—more than a decade after Congress passed the Tobacco Control Act and tossed the menthol hot potato in the FDA’s lap.

The agency was sued last year by tobacco control groups to force a response to a 2013 Citizen Petition demanding a menthol ban, and the court ordered the FDA to respond by April 29. All other “characterizing flavors” in cigarettes were banned in 2009.

As we reported last week, the tobacco regulators are considering two policy actions first advanced by Scott Gottlieb during his time as FDA commissioner: the menthol ban and mandated nicotine reduction in cigarettes. Acting FDA Commissioner Janet Woodcock said during a press conference today that the very-low nicotine standard is still under consideration.

The FDA presented the menthol ban as a response to disproportionate menthol use by black Americans, and historic targeting of black Americans by the tobacco industry. Addressing the concerns expressed by skeptical black and drug policy activists that a menthol ban will lead to enforcement actions in minority communities, the agency engaged in misdirection.

“If implemented, the FDA’s enforcement of any ban on menthol cigarettes and all flavored cigars will only address manufacturers, distributors, wholesalers, importers and retailers,” said the agency’s press release. “The FDA cannot and will not enforce against individual consumer possession or use of menthol cigarettes or any tobacco product. The FDA will work to make sure that any unlawful tobacco products do not make their way onto the market.”

But enforcement actions against distributors and retailers in minority neighborhoods means actions against the same groups of people who live in those neighborhoods. And, despite the FDA’s lack of enforcement against smokers, it will be local police who confiscate contraband cigarette deliveries and punish the individuals who sell them illegally.

“Recall that Eric Garner's fatal encounter with police began with an arrest for the petty crime of selling loose cigarettes and ended with him being choked to death by a New York City cop,” wrote Jacob Grier earlier this week.

The FDA's press release avoided the issue of low-risk nicotine alternatives for smokers, instead reminding us that it is still slogging through millions of premarket applications for vaping products, and is actively engaged in a youth anti-vaping campaign.

Acting Commissioner Woodcock responded to a question on the FDA press call by saying that educating the public about low-risk options like vaping was “part of the overall plan on harm reduction.” That’s encouraging, even though she followed up by saying the FDA needs to “learn more” about them.

Unfortunately, while the FDA learns, the public is being misled by tobacco control groups to believe vaping is as dangerous as smoking. Almost a half-million Americans will die prematurely this year because they spent their adult lives smoking, and had no low-risk nicotine product like e-cigarettes to switch to. Now that such an option is available, the FDA is terrified that telling the truth about it will earn them a mean letter from the Campaign for Tobacco-Free Kids.

“Evidence from other countries suggests that a menthol ban is not a magic wand that will spur a majority of users to quit nicotine entirely,” says American Vaping Association president Gregory Conley. “There will be no massive public health benefit if the response from most menthol and little cigar smokers is to switch to Marlboros or use illicit products bought off the street.”

The agency will now go through the full rulemaking process, beginning with a proposed rule and a public comment period. By the time the agency completes a final rule and fights the tobacco companies in court, it could be many years before menthol cigarettes are off the legal market, if it happens at all.

Meanwhile, tobacco control groups will be pushing the FDA to blackball flavored vaping product PMTAs, and spending Michael Bloomberg’s millions to advance flavor bans in state legislatures and city councils across the country. By the time menthol cigarettes come off the market, there may be no menthol vapes for smokers to switch to.

We can probably expect to hear details of the FDA’s “overall plan on harm reduction” at about that same time.