Consumer Watchdog Slams FDA Menthol Ban

For Immediate Release

Contact: David Williams (202-258-6527)

Washington, D.C. – Today, the U.S. Food and Drug Administration (FDA) announced its intent to issue proposed product standards within the next year” which would ban the manufacture and sale of menthol cigarettes, as well as characterizing flavors in cigars. The FDA asserted that this is in line with its commitment to “reduce disease and death from using combusted tobacco products.” Acting FDA Commissioner Janet Woodcock, M.D., also noted that the proposed ban could help “address health disparities experienced by communities of color, low-income populations, and LGBTQ+ individuals, all of whom are far more likely to use these tobacco products.”

In response, TPA Policy Analyst Lindsey Stroud offered the following comment:

“Reducing combustible tobacco use is a worthwhile goal and we applaud the agency’s attempt to both prevent youth use, as well as helping adult smokers quit. Unfortunately, a ban on menthol cigarettes and flavored cigars will not yield the desired results the agency seeks. A ban will welcome bad actors and an unregulated tobacco market and could actually led to increased police interactions in low-income communities of color.

“There is scant evidence that menthol cigarette bans have reduced cigarette consumption. Evidence from Massachusetts, which implemented both a menthol cigarette ban and flavored vapor product ban in the summer of 2020, finds that smokers simply purchased from other states. Further, some Massachusetts retailers have even been caught selling cigarettes purchased by strawmen from other states.

“In 2015, according to the National Research Council, illicit cigarette sales in the US amounted to ‘between $2.95 billion and $6.92 billion in loss gross state and local tax revenues.’ Undoubtedly, adult consumers of menthol cigarettes will seek out illicit cigarettes on the black market in the instance of a ban on legal products.

“The FDA claims that menthol cigarettes disproportionately impact minorities, namely black Americans. Although a larger percentage of black Americans smoke menthol cigarettes, white Americans consume larger percentages of menthol cigarettes, overall. Nonetheless, given that black Americans smoke menthols at higher rates, they are likely to be unfairly burdened by the ban and this could lead to further instances of police interaction.

“Although the FDA insists that the ban would not impact possession, it seems to forget that there will be a market in the wake of a ban for persons to capitalize. Further, there are already examples of blacks being victims of the police due to illicit cigarette sales. Eric Garner was killed in a police chokehold in 2014 after being arrested for selling loose cigarettes in New York City. George Floyd was killed after being detained for passing along a counterfeit bill to purchase a pack of cigarettes.

“Deeply problematic is that the agency is declaring to purportedly commit to ‘evidence-based actions aimed at saving lives and preventing future generations of smokers.’ The FDA has yet to acknowledge the role of tobacco harm reduction products – including e-cigarettes, let alone approve any of the required premarket tobacco product applications (PMTAs) for such products. If the agency cared about reducing smokers, it would prioritize the massive amount of PMTAs it is currently overseeing and not add an additional regulatory action until those were finalized.

“Ultimately, the move today by the FDA is unlikely to reduce smoking rates. In fact, the ban will help bad actors profit off of newly illegal products and allow a black market to flourish, and overburden a floundering federal agency that is still slow in progress in regards to tobacco harm reduction. “

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Taxpayers Protection Alliance (TPA) is a non-profit, non-partisan organization dedicated to educating the public through the research, analysis and dissemination of information on the government’s effects on the economy.