Menthol Cigarette Ban
Packs of menthol cigarettes and other tobacco products at a store in San Francisco. On Thursday, April 29, 2021, the Food and Drug Administration pledged again to try to ban menthol cigarettes, this time under pressure from African American groups to remove the mint flavor popular among Black smokers (AP Photo/Jeff Chiu).

This spring, the Food and Drug Administration (FDA) proposed a ban on menthol cigarettes.

The move was hailed as a boon to the health of Black smokers, 85 percent of whom use mentholated brands such as Kool, Newport, or Salem (which come in green packs to denote their minty flavor). In contrast, under a third of white smokers choose menthol, the rest preferring regular brands, such as Marlboro (so-called red packs). Given the difference in population size, there are more white menthol smokers than Black menthol smokers.

White and Black smokers are at risk from using cigarettes of any kind. But Black smokers are more likely to die from tobacco-related illnesses, such as cancer and heart disease, according to the Centers for Disease Control (CDC) even though the 2019 smoking prevalence was virtually the same for whites (15.5 percent) and blacks (14.9 percent), perhaps owing to other health-related issues, such as lesser quality of care, and other factors.

“We’re being liberated from the harm of mentholated tobacco products,” said Delmonte Jefferson, executive director of The Center for Black Health & Equity. “It’s about time we prioritize the health and well-being of African Americans,” was the response of the NAACP to the proposed FDA ban.

“This is a major step forward in Saving Black Lives,” exclaimed the head of The African American Tobacco Control Leadership Council, which sued the U.S. Department of Health and Human Services last year to ban menthol.

Not every civil rights leader is a fan. According to the Washington Post, “the Rev. Al Sharpton, says it would be discriminatory to outlaw a product that is especially popular among African Americans.”

Yet there is strong consensus among public health experts that the ban will “reduce health disparities and promote health equity,“ as the FDA put it.

There’s reason to be wary of that claim, however, and to consider the possible unintended side effects of well-meaning regulation. First, attempts to improve public health by bans of widely used products – and addictive products, in particular – have a bad track record. The war on drugs and alcohol prohibition, which drove users into the arms of criminal dealers and unsafe markets with their riskier substances, stand as object lessons.

In reality, the enormous public health success of reduced smoking – now at an estimated 14 percent of U.S. adults (34.1 million “current smokers,” or 1 in 14 ) down from 20.9 percent in 2005 and down from 42 percent in 1964—did not come from cigarette bans or outlawing various forms of tobacco—snuff, chew, pipe, roll-your-own, etc.

The decline came not through bans, but through education, public persuasion, and policy nudges and changes, starting with a series of articles about research on the dangers of smoking published in the ‘50s in Readers’ Digest, the most read publication at the time. In 1964, the landmark report of the Surgeon General highlighted health risks, prominently cancer and heart disease. This was followed two years later by health warnings on cigarette packages. (Here are the nudges and changes.) The ‘70s saw restrictions on tobacco advertising on television and radio. Higher state and local taxes on cigarettes followed in the late 1980s as did a federal law banning smoking on domestic airlines. In the ‘90s, a massive lawsuit waged by 46 state attorneys general against tobacco companies led to the demise of “Joe Camel” and other ad campaigns, which were understood to be aimed at kids. And many states outlawed smoking in workplaces and restaurants starting in the mid-1990s.

The move to ban menthol-flavored tobacco products has been underway for at least three decades. In the late 1980s, the late U.S. Representative and civil rights leader John Lewis decried cigarette billboards in poor, inner cities and in 1990, George H.W. Bush’s Secretary of Health and Human Services Dr. Louis Sullivan condemned a new menthol brand from Reynolds called “Uptown,” which was being test-marketed in Philadelphia, as “slick and sinister.” As early as the 1950s, the tobacco industry advertised menthol brands, most notably Kool and Salem, in the Black press with the rise of African-American publications, such as Ebony and Jet.

Would a menthol ban be a fruitless effort to reduce smoking among menthol consumers, who represent the majority of Black smokers? We can’t be sure. Some fraction of menthol smokers will quit under pressure, some with the aid of nicotine patches or gum, estimated to help between six and 20 percent of smokers. After the European Union banned menthol last May, for example, eight percent had quit as of October. More optimistically, one in five Canadian menthol smokers quit between 2016 and 2017 after seven provinces instituted a menthol ban. That’s a not-insignificant figure, but still not enough to claim a public health victory.

But the remaining menthol users will either migrate to regular cigarettes, as many did following the Canadian ban, or MacGyver their own menthol smokes by putting regular cigarettes in a plastic bag with menthol flavor cards or adding menthol drops to the filter.

Others, finally, will douse their cravings by patronizing the underground mentholated market—a problem cited by the ACLU and other justice groups that oppose the ban, pointing to the case of Eric Garner, a black man from Staten Island who died in a police chokehold in 2014 while being arrested on suspicion of selling bootleg “loosie” cigarettes.

The second reason the ban is likely doomed is because it offers no alternatives. “You don’t start out forcing people to change unhealthy behaviors in such a radical way unless they know there are other, less hazardous options,” says David Sweanor, an adjunct professor of law at University of Ottawa and a veteran anti-smoking advocate. “Social justice and paternalism don’t mix.”

Sweanor makes a convincing argument. When it comes to menthol, smokers need more than a ban. They need to know about reduced-harm nicotine products that can help where gum and patches have failed.

Although nicotine is an addictive substance, it is considered otherwise safe when consumed by healthy people. Contrary to myth, cancer is not caused by nicotine but by the tars generated by combusted (burned) tobacco.

Briefly, reduced-harm nicotine products include electronic cigarettes, a battery-powered device that heats a flavored solution containing nicotine and converts it into an inhalable, or “vape-able,” aerosol. E-cigarettes are ninety to 95 percent less hazardous than cigarettes and currently undergoing the review process at the FDA. Concern about recruitment of young people to smoking is not borne out by data. In fact, youth smoking rates, which have been declining for decades, dropped more steeply in the years that teen vaping increased most, between 2013 and 2019, reaching a record low in 2020 of 4.6 percent.

Other such products include a form of FDA-sanctioned smokeless tobacco, “snus,” which comes in tiny packets that fit between the upper lip and gum. Unlike older forms of chewing tobacco and moist snuff, spit-less snus has very low-levels of tobacco-specific nitrosamines, the known carcinogen in traditional oral tobacco. In Sweden, where most of the men who use a tobacco product use snus, smoking deaths are significantly lower than in all other EU countries. The country has the lowest rate of lung cancer among men in the EU, and the risk of oral and head and neck cancers is negligible.

Zyn, pending FDA review, also comes in an oral pouch but contains pharmaceutical grade nicotine-containing material. There is no tobacco at all in Zyn.

Lastly, there are FDA-reviewed heat-not-burn devices, which are enormously popular in Japan as a safer alternative. The apparatus uses a blade to heat compressed tobacco that comes in the form of a stick that is inserted into a battery-powered device resembling a cigarette. Heat-not-burn products yield an average 90 percentreduction of 37 harmful and potentially harmful contaminants compared to standard cigarettes.

All these harm-reduction products come in menthol versions.

If menthol users felt empowered to switch to less harmful products, more would almost surely stop smoking cigarettes. The problem, however, is that high-profile public health agencies such as the Centers for the Disease Control and Prevention, as well as major anti-smoking organizations, including the American Lung Association, have downplayed or starkly misrepresented the comparative health benefits of such products.

As for the menthol ban, it is still years away because the FDA rulemaking process is so slow.

For now, let’s assume it’s headed toward approval and implementation. During that lag, public health agencies should be working overtime to educate menthol smokers about the relative-to-cigarettes benefits of reduced-harm products.

If menthol smokers became menthol vapers, menthol smokeless and Zyn users, or menthol heat-not-burn menthol users, a vast improvement in public health would be underway—one disproportionately favoring Black smokers. Complete abandonment of smoking entirely would yield better health outcomes but that’s not going to happen.

But there is another, overlooked element in the campaign against mentholated tobacco. Namely, how it fails to mention white smokers. While Black smokers appear to sustain greater mortality from smoking-related disorders as a group, whites represent the biggest afflicted population. Their absolute numbers exceed those of Black smokers.

True health “social justice,” therefore, would impel public health advocates to prohibit cigarettes altogether, not just menthol bans. But that is no more likely than a return to alcohol prohibition. Thanks to a landmark 2009 law that says that the FDA cannot ban cigarettes per se, the agency can only take incremental steps like this menthol ban.

This twist of regulatory fate means that menthol smokers will be given a powerful incentive that could actually get them to quit smoking cigarettes — but only if health agencies promote reduced-harm options like vaping through education campaigns rather than just assume menthol-deprived smokers will go cold turkey or quit with nicotine patches and gum.

Whether the menthol ban experiment succeeds or founders depends upon public health agencies spelling out—accurately and clearly—the relative risks of reduced-harm options versus traditional cigarettes. “Pragmatism will trump absolutism,” promises Sweanor.

Otherwise, menthol smokers, deprived of a product to which they are addicted, will scramble to get it elsewhere without being guided to safer nicotine alternatives. At worst, menthol smokers, Black and white, will endanger themselves. There is no social justice in that.

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Sally Satel

Sally Satel is a resident fellow at the American Enterprise Institute.