FDA weighs ban on menthol cigarettes, which disproportionately addict Black Americans

Theo Wilson avoided smoking most of his adult life. He remembered the smell of menthol from his childhood, the smell of his father’s cigarettes, his aunt’s and his grandmother’s. The minty smell of the cigarettes whose secondhand smoke gave him childhood asthma, the smell of the cigarettes that cut his grandmother’s life short.

But in 2018, when he portrayed an Iraq War veteran in a play in Denver, his character was expected to smoke a marijuana cigarette onstage. The prop master got him an e-cigarette with a blinking blue light at the end, wrapping it in rolling paper to look convincing. After everything he knew, after railing against smoking, he got hooked. Over-the-counter minty e-cigarettes became fat vape pens, vaping turned into menthol and clove tobacco cigarettes. He bummed Kools and Newports—two of the most popular menthol brands—off the musicians he played with, off the former felons he knew, their own habits developing because “these cigarettes were currency in the yard.”

“I couldn’t put it down until one day I was driving to a nightclub and I couldn’t breathe,” said Wilson, 39. It took him a year to quit.

As Black Americans continue to suffer disproportionate health consequences of addiction to menthol cigarettes, the U.S. Food and Drug Administration this month must respond to a court order demanding it take a position on whether to ban the product.

The FDA has long targeted menthol cigarettes for a regulatory crackdown amid warnings from doctors and other public health experts that the products are easier to start smoking, harder to quit and cause outsize harm to African Americans.

But the FDA has held back, because of opposition from the tobacco industry, which spends tens of millions of dollars a year on lobbying and argues menthol cigarettes have not been shown to be more toxic than regular ones. Opposition has also come from GOP and Democratic officials as well as civil rights groups and leaders, including the American Civil Liberties Union and Al Sharpton, who have said that banning menthol would risk police targeting Black Americans for selling illegal cigarettes.

Now, the agency must respond by April 29 to a citizen petition—a unique regulatory tool that allows the public to request the FDA consider policy changes—demanding menthol cigarettes be banned.

Advocates of the ban cite a litany of health effects. Only 29% of White smokers choose menthol, as opposed to 85% of African American smokers, according to a National Survey on Drug Use and Health, fueled by more than half a century of Big Tobacco aggressively marketing them specifically to Black Americans.

Although Black Americans smoke less than White Americans in general, Black men have the highest rates of lung cancer in the United States, according to the Centers for Disease Control and Prevention. The No. 1 cause of preventable death among African Americans, tobacco claims 45,000 Black lives each year.

Carol McGruder, co-chair of the African American Tobacco Control Leadership Council, an advocacy group that has also sued to force the FDA to take action on menthol, says menthol cigarette bans have been bargained out of tighter tobacco and vaping legislation for more than a decade, but that the time has come for the FDA to take action.

“For years, this has been an underdog issue that wasn’t on the radar, but over time people have become educated and engaged. We are suing the FDA now to compel them to do what they were charged to do: to take menthol off the market,” McGruder said. The lawsuit alleged that the FDA had unreasonably delayed issuing a final response to the citizen petition.

The FDA said the petitioners and the agency agreed to extend the original deadline of Jan. 29 for a response so the agency could consider more recent studies conducted after the original citizen petition was submitted.

“This will provide FDA with additional time to fully consider the new information, to ensure that the response takes into account all relevant information, to engage with new leadership, and to chart a path forward,” the FDA wrote in an email.

However, some antismoking activists worry that momentum at the agency won’t be sufficient because the Biden administration does not yet have a permanent FDA commissioner. Janet Woodcock, who until recently ran the Center for Drug Evaluation and Research and has been on the FDA’s Nicotine Steering Committee, serves as acting commissioner.

Scott Gottlieb, who as FDA commissioner during the Trump administration in 2018 led the last failed effort to ban menthol, says the science about menthol cigarettes should outweigh any arguments about a ban targeting a specific community.

“The science was strong then and is even stronger now,” he said in an interview with The Washington Post. “Just because an addiction crisis disproportionately impacts one sector, it doesn’t mean that it’s racist to respond to that.”

Wilson learned about the health hazards of smoking in fifth grade, racing home from school in tears to beg his grandma to quit. She poured all her cigarettes out of the carton.

“I felt so accomplished. But I woke up the next morning with her coming in carrying a brand new pack of menthols,” he remembered. “She died of lung cancer, and when she passed, I judged her harshly. I didn’t cry, because ultimately she chose the cigarettes over us.”

He carried around a quiet anger at his grandmother for years. Now a poet and lecturer on race and social justice issues in Aurora, Colo., he’s changed his mind.

“The hood doesn’t have a corner store without a tobacco outlet, no strip mall without some place where you can buy this stuff. It’s ubiquitous,” he said. “Black lives are under so many threats, there are too many fires to put out. Tobacco is just one of them.”

“Special marketing campaigns that kill people of a certain race? That’s the definition of institutional racism,” he said.

Menthol cigarettes may have been found by accident by Lloyd “Spud” Hughes of Mingo Junction, Ohio, in the 1920s—he stored his smokes overnight alongside crystallized menthol, a chemical naturally found in peppermint and other mint plants, which he used to relieve asthma. By 1927, “Spud Menthol Cooled Cigarettes” were sold nationwide, and since then tobacco companies have used menthol to mask throat and lung irritation and to make low-tar cigarettes more palatable.

“I argue menthol is the ultimate candy flavoring that helps the poison go down easier,” said Phillip Gardiner, co-chair of the African American Tobacco Control Leadership Council and recently retired from the University of California Office of the President’s Tobacco-Related Disease Research Program. “It is by definition an anesthetic, allowing for deeper inhalation, and the more nicotine and toxins you take in, the more addicted you become.”

A recent report in the Tobacco Control journal estimated that menthol cigarettes were responsible for 10.1 million extra smokers and 378,000 premature deaths in the United States between 1980 and 2018. Gardiner points to studies that suggest menthol activates more nicotine receptors in the brain, enhances the penetration of nicotine and keeps nicotine in the body longer, adding that “all these things add up to a greater level of addiction and impact on the body.”

Kaelan Hollon, a spokeswoman for R.J. Reynolds, disputes these findings, saying, “The science does not support regulating menthol cigarettes differently than non-menthol cigarettes, and the many issues implicated by a menthol cigarette ban—science, illicit trade and unintended consequences—are important and merit careful thought.”

The tobacco industry has sponsored African American-focused community and music events such as the Kool Jazz Festival, and Gardiner says, marketed menthol cigarettes specifically to African Americans. In February 1989, Reynolds debuted Uptown cigarettes to coincide with Black History Month; in 1995, Menthol X launched with images linked to Malcolm X; in 1997, Camel marketed a menthol “Smooth Joe Camel” in Black communities.

Researchers have found tobacco companies offer cheaper pricing and better deals on menthol cigarettes in Black neighborhoods.

“Black neighborhoods have more outlets selling tobacco, menthol cigarette prices are cheaper, and stores are more likely to offer price promotions,” said Sarah Mills, an assistant professor in the Gillings School of Global Public Health at the University of North Carolina, who in 2015 conducted one of the first national studies of disparities in retail marketing for menthol cigarettes.

While increasing taxes is a chief way to get smokers to quit, Lisa Henriksen, a senior research scientist at Stanford Prevention Research Center at the Stanford University School of Medicine, has found retailers and tobacco sellers in Black neighborhoods may eat those cost increases to keep prices low, blunting the intent of these taxes.

In 2009, Congress passed legislation that gave the FDA power to ban menthol tobacco products. The agency proceeded to study the issue, concluding in 2011 that the “removal of menthol cigarettes from the marketplace would benefit public health in the United States.” In 2013, the FDA released a report finding that menthol cigarettes lead to increased smoking initiation among teens and young adults, greater addiction and decreased success in quitting smoking.

But the FDA shied away from action. “I think the FDA is remiss and that they should have acted on these reports,” said former congressman Henry Waxman, D-Calif., who was the author of the 2009 legislation.

George Parman, spokesman for Altria Group, the parent company of Philip Morris USA, argued that the FDA response to the report was correct.

“Our perspective is that in 2013, the FDA determined based on science and evidence that menthol does not play a unique role in smoking prevalence, dependence or cessation,” Parman said. He says that in that report, the FDA concluded that menthol cigarettes did not differ from non-menthol cigarettes with respect to smoke chemistry and nonclinical toxicology, biomarkers of exposure, marketing, and consumer perception of risk and disease risk.

The 2013 FDA report did, however, in its summary of evidence state there is “adequate data [to] suggest that menthol use is likely associated with increased smoking initiation by youth and young adults. Further, the data indicate that menthol in cigarettes is likely associated with greater addiction.”

As FDA commissioner, Gottlieb brought new focus to curbing tobacco use and teen vaping. In November 2018, he announced that the FDA intended to ban menthol cigarettes, but faced opposition from the White House as well as Democrats and Republicans in Congress, especially those from tobacco-growing states like North Carolina.

“There were people in the White House that generally supported my thoughts on e-cigarettes, but there were people sympathetic to the North Carolina group and they weren’t talking to me,” Gottlieb said. “The day I announced this policy, I knew I would get criticism. The Department of Health and Human Services was making this very hard on me.”

Sens. Richard Burr and Thom Tillis, both Republicans from North Carolina, the country’s No. 1 tobacco-growing state, immediately opposed the decision.

“This is not the first time the FDA has tried to ban menthol,” Burr said in a statement. “It is troubling, however, that an administration that pledges to put America first is targeting legal, American-made products instead of focusing its attention on states that flout federal drug laws.”

Gottlieb said Democrats had the opportunity to bring this legislation forward and that they stopped short: “This wasn’t a concerted effort; I was on my own.”

In a 2017 memo, Gottlieb wrote, “Unless we change course, 5.6 million young people today will die prematurely later in life from tobacco use.” Nonetheless, the Trump administration delayed rules that would restrict flavored e-cigarettes or reduce nicotine levels in cigarettes. Gottlieb resigned in 2019, tobacco stocks jumped immediately, and momentum for a menthol ban stalled.

Some prominent civil rights activists have strenuously objected to menthol cigarette bans, concerned that a ban would spawn a black market for menthol-flavored tobacco products and increase overly aggressive policing in Black neighborhoods. Sharpton, who opposes a menthol ban, points to tobacco as a common theme in recent conflicts between citizens and police that have led to African American deaths.

Eric Garner died in police custody in New York after being approached for selling loose cigarettes illegally; Michael Brown was killed after being suspected of stealing cigars. George Floyd was killed by police responding to a claim that he tried to use a counterfeit bill to purchase cigarettes. Sandra Bland died in a traffic stop after a trooper arrested her after she refused to put out a cigarette.

“We do not think kids should be put in jail or given a ticket for selling menthol,” Sharpton told The Post. “You’re going to give the police another reason to engage our people?”

Detractors have noted that Sharpton’s civil rights group, the National Action Network, has held events sponsored by R.J. Reynolds, which makes Newport cigarettes, the most popular menthol cigarette and the No. 2 U.S. cigarette brand overall.

“There’s a level of predation in terms of our leadership groups,” McGruder said. “Because we are always behind the eight ball in needed funding, leaders have made deals with the devil and turned a blind eye.”

Sharpton told The Post that his organization will examine options such as restricting access and advertising of menthol cigarettes in Black neighborhoods, but he remains firmly against criminalizing the sale of menthol cigarettes.

“People are looking for reasons to discredit the National Action Network. Yes, [Reynolds] has given us money, I don’t even know how much, but Facebook gives us money and I came out against Mark Zuckerberg. You ask the anti-menthol advocates if they’re for decriminalizing marijuana. And if they say yes, then how do they explain their inconsistency? You can’t have it both ways,” Sharpton said. “Our position has been that it would be inconsistent to decriminalize marijuana but criminalize menthol cigarettes, it’s just that simple.”