Presidential contenders stay mum, for now, on menthol ban

WASHINGTON — When former President Donald Trump and Vice President Kamala Harris took the debate stage Tuesday, they briefly touched on reproductive rights, health insurance access and drug prices.

Left unmentioned, however, was another divisive, though less high-profile public health issue: The fate of menthol cigarettes.

The Biden administration’s Food and Drug Administration formally proposed a ban on such products in 2022 but ultimately held off on issuing a final rule, saying it needed more time to parse through the ramifications.

The proposal would prohibit the sale of cigarettes that contain menthol as a “characterizing flavor,” which enhances cigarettes’ sensory appeal and makes them easier to inhale.

Many argue the ban would disproportionately affect Black smokers, who use menthol cigarettes at higher rates than other groups, and could lead to over-policing of individuals.

In 2020, 81% of Black Americans who smoked cigarettes used menthol cigarettes, compared to 34% of non-Hispanic white smokers, according to data from the Centers for Disease Control and Prevention.

Even though it’s been shelved, the FDA says it’s still working on the rule.

Brian King, the director of the FDA’s Center for Tobacco Products told lawmakers during a House Energy and Commerce health subcommittee hearing Tuesday that the rule remains high on the agency’s to-do list.

“FDA has not abandoned the menthol product standard,” he said. “It’s a priority for us. We followed through rulemaking processes and it’s presently with the White House and it continues to be a priority for us.”

“It’s hard to get anything done this Congress it seems like, but I’m hopeful,” Rep. Robin Kelly, D-Ill, a member of the Congressional Black Caucus and proponent of the ban, told CQ Roll Call after the hearing.

Though it hasn’t come up as a major election issue, some conservative groups have begun targeting the ban in an attempt to peel some voters away from Harris.

The conservative groups Building America’s Future and Americans for Consumer Protection are planning to spend $10 million campaigning against the proposed ban, NBC News reported late last month.

“Instead of solving the problems that matter to you, Kamala Harris and D.C. Democrats are coming after your menthol cigarettes,” the groups’ 30-second ad states. “We’ve got bigger problems to deal with, and so do Democrats.”

Banning flavors in cigarettes goes back to 2009, when Congress passed the Tobacco Control Acr. Under the law, tobacco companies were banned from using all characterizing flavors in cigarettes — except for menthol. Since then, public health groups have repeatedly pressed the FDA to also ban menthol as a characterizing flavor.

The agency in 2013 and in 2017 solicited public comments on a proposed menthol ban, but didn’t formally publish a proposed rule.

When the Biden administration announced in April they were holding off on a final rule, advocates initially wondered if the move was spurred by worries about political implications during a tense election year.

But now that Harris is the nominee, the calculus has changed.

While Harris hasn’t publicly indicated how she would handle the proposed ban if elected, she has a track record of being tough on tobacco and nicotine.

As a U.S. senator, she signed onto a 2018 letter urging then-FDA Commissioner Scott Gottlieb to move quickly to ban flavored tobacco products, including menthol. As attorney general of California, she signed on to a 2013 letter with 40 other attorneys general urging the FDA to regulate e-cigarettes.

She supported state legislation in 2015 that would prohibit e-cigarette companies from marketing to children and would classify them as tobacco products.

“It may be that she cares about this issue more than Biden did, it almost certainly does,” said Eric Lindblom, a senior scholar at Georgetown University’s O’Neill Institute and a former advisor to FDA’s tobacco chief. “Whether that’s enough to put it on her agenda and to make her want to do something with it is an entirely different question.”

Phillip Gardiner, the co-chair of the African American Tobacco Control Leadership Council, said the FDA could finalize the rule during the lame duck session, though that would make it vulnerable to being repealed by congressional Republicans. He added that the rule would fall in line with the administration’s cancer moonshot initiative to reduce cancer rates.

He said Harris would face the same pressures that the Biden administration has in getting the proposal through. But he said she could leverage her relationships with Black civil rights leaders, including Rev. Al Sharpton, who has been notably opposed to the ban, to make her case.

“A lot of tobacco money has gone into the hands of a number of Black organizations that essentially have been able to convince Biden not to do anything about it,” he said.

Cliff Douglas, the CEO of the advocacy group Global Action to End Smoking, said in an interview Wednesday that there could potentially be a path forward for the ban in either administration.

He pointed to a plan heralded by Trump-era FDA Commissioner Gottlieb that outlined a menthol cigarette ban. But he acknowledged that it’s not clear who could take over as FDA chief in a new Trump administration.

“It’s harder to predict with Trump whether he would remain consistent on this,” he said.

He said the White House could be more likely to pull the trigger on the ban after the election, especially if Harris wins.

“Once we’re past Nov. 5, I think there is a pretty good chance that the rule will go forward,” Douglas said. “But whether it does in the Biden administration or in the next one after January is another question.”

Lindblom said he was less confident that the rule could go forward under a Trump administration, but he said there is a wild card — litigation recently refiled against the agency alleging that it’s not doing enough to crack down on menthol cigarette use.

“That could force the Trump administration to take action if they don’t want a court ruling against them,” he said.

A main argument against menthol cigarettes has been that they serve as a gateway for youths who otherwise wouldn’t have started using nicotine products.

But Douglas said the data is starting to show that youths aren’t using menthol cigarettes at the same rate.

Data from the Centers for Disease Control and Prevention showed that as of last year, just 2% of high school students are currently smoking cigarettes. He said this could indicate public health officials will shift their messaging around menthol cigarettes to home in on adult use.

Gardiner said that beyond the rule, more needs to be done to rein in menthol cigarettes. He underscored that the proposal would only ban menthol as a “characterizing flavor” but would still allow the ingredient to be used.

He’s also concerned that while the rule prohibits tobacco companies from producing menthol cigarettes for domestic consumption, it would still allow companies to produce them for export.

“The rule itself is really just a half step,” he said.