Delayed Menthol Ban Gives Biden Administration More Time to Reduce Smoking by Advancing Harm Reduction

The proposed national menthol ban has been delayed – and offers a valuable opportunity to re-evaluate America’s approach to smoking reduction. While any effort to lessen smoking-related harms is commendable, the United States should move past outdated prohibitionist policies and focus on a strategy that fosters tobacco harm reduction.

Last week, Secretary of the Department of Health and Human Services Xavier Becerra announced the Biden administration was delaying the historic would-be prohibition. In a statement, Secretary Becerra noted that the rule had “garnered historic attention” and an “immense amount of feedback, including from various elements of the civil rights and criminal justice movement.” He stated that it was “clear that there are still more conversations to have,” and indicated more time was needed before finalizing the rule.

As expected, this angered many tobacco control organizations and public health trade associations who supported the rule.

The Truth Initiative described the delay a “huge loss for public health,” criticizing the administration for missing an opportunity to “save lives, protect youth” and advocate social justice. The Campaign for Tobacco-Free Kids (CTFK) labeled the postponement as “unacceptable,” accusing the White House of echoing the “false claims of the tobacco industry.” The American Lung Association stated that the delay in banning menthol cigarettes would result in more deaths and that President Biden had lost “an incredible opportunity to reduce the death and disease associated with tobacco use.” The American Cancer Society Cancer Action Network (ACSCAN) urged the administration to proceed with the rules banning both menthol cigarettes and flavored cigars or risk a “historic opportunity to save lives.”

Despite the dramatic statements, evidence suggests menthol cigarette bans may not significantly reduce smoking rates or related harms. A 2024 systematic review of studies on menthol bans concluded that only 20 percent of adults who smoked menthol cigarettes had quit smoking after a ban, while half (50 percent) had switched to non-menthol cigarettes or other flavored tobacco products, and 24 percent continued smoking.

Statewide bans in the U.S. have not dramatically reduced smoking rates and have also led to unintended consequences. For example, a 2023 study analyzing discarded cigarette packs in California found only a 13.9 percent reduction in menthol cigarette packs the year after the state’s flavored tobacco and vapor product ban went into effect. Similarly, Massachusetts’ ban did not significantly lower smoking rates but resulted in a loss of more than $100 million annually in cigarette excise collections, and necessitated a 73 percent increase in state funding for its Illegal Tobacco Task Force to enforce the ban.

The delay announcement did not explicitly address the fact that minorities, specifically Black adults, predominantly smoke menthol cigarettes. One concerning aspect of the proposed prohibition is the potential increase in violent police interactions over non-violent offenses. Although the ban would not criminalize the possession of menthol cigarettes, making their sale illegal could lead to significant consequences for individuals who may turn to illicit markets.

The case of Eric Garner, a Black man who lost his life nearly a decade ago in New York City after a police confrontation over allegedly selling individual cigarettes from a lower-tax jurisdiction, illustrates this risk. New York City’s high cigarette excise taxes have made it a hotspot for smuggled tobacco. Prohibiting menthol cigarettes is likely to exacerbate issues with law enforcement as authorities attempt to enforce a federal ban on a product frequently used by minority adults. Gwen Carr, Garner’s mother and a vocal activist, is an opponent of the ban. In February she wrote that while she doesn’t “condone smoking, [she is] hopeful that this presidential administration will understand the consequences of such a prohibition” and focus elsewhere on improving Black lives.

If the Biden administration and public health groups truly aim to reduce the harms associated with smoking, they should encourage the Food and Drug Administration (FDA) to expedite the authorization of tobacco harm reduction products including e-cigarettes, heated tobacco, and oral nicotine products. Instead, groups like CTFK and ACSCAN, purport that a ban on menthol cigarettes will save lives, yet actively encourage the White House and federal agencies to prohibit the sale of products which are significantly less harmful than combustible cigarettes.

In Tokyo, Japan, heated tobacco products are now outselling one major brand of combustible cigarettes. The widespread use of flavored disposable e-cigarettes in the U.S. has led to a 10 percent decrease in another major tobacco company’s sales of combustible cigarettes. In Sweden, men have some of the highest rates of oral tobacco use in Europe, but the lowest rates of lung cancer and other smoking-related diseases on the continent.

More than half a decade ago, the FDA announced a public health education campaign to inform adults who smoke of the continuum of risk associated with tobacco products. Yet, even this year, the agency admits that significant misperceptions about the “relative risks” associated with nicotine persist.

The U.S. lags in embracing harm reduction. By creating a marketplace that empowers informed decision-making and fosters safer alternatives, the administration can truly address the needs of millions of adults who smoke and significantly reduce smoking-related deaths. This delay presents an opportunity to chart a new course – a course focused on progress, not prohibition.

Lindsey Stroud is a Senior Fellow at the Taxpayers Protection Alliance.