FDA Has Once Again Delayed Its Menthol Ban

The Food and Drug Administration's (FDA) wrongheaded decision to ban menthol flavored cigars and cigarettes is facing yet another delay. The ban has been under final review at the White House for six months, but this latest delay makes it less likely that the rule can be implemented before the presidential election in November and demonstrates the unpopularity of this proposal. A ban on menthol cigarettes or cigars would be ineffective and would lead to a black market for these products.

An April 26, 2024, the Department of Health and Human Services Secretary (HHS) released the following statement by Secretary Xavier Becerra: "This rule has garnered historic attention, and the public comment period has yielded an immense amount of feedback, including from various elements of the civil rights and criminal justice movement. It's clear that there are still more conversations to have, and that will take significantly more time."

Supporters of a ban on menthol flavoring claim that it is meant to reduce youth smoking. However, youth cigarette use is at historic low and menthol cigarettes are no more dangerous than any other cigarette or combustible tobacco product. As Citizens Against Government Waste noted in its August 21, 2022, comments on the proposed ban, "the doors will be open to an illegal, unregulated, and dangerous black market which increases the risk to public health and safety. This ban will also drain local, state, and federal governments of tax revenue streams. Small businesses that rely on tobacco sales will be subject to lost revenues of the menthol prohibition."

Flavor bans also fall short of the goal of reducing tobacco use as shown by what happened following the flavor ban in California. An August 2023, WPSM Group study reported on the collection of 15,000 empty discarded cigarette packs and 4,529 e-vapor product packages from May 1, 2023 through June 28, 2023, in 10 California cities. The report found that the flavor ban had no effect on the access or demand of flavored e-vapor products or menthol cigarettes through the state. Despite the ban, 97.9 percent of the e-vapor packs found were flavored, and 27.6 percent of those products were non-domestic products, which are not approved for the U.S. market.

Creating a black market for flavored cigarettes poses a serious greater threat to the health and safety of Americans. According to a January 22, 2018, article from The Mesothelioma Center, "A staggering 99 percent of the U.S. counterfeit cigarette market is supplied by China." The article further noted, "Unknowing to the consumer, any number of these counterfeit products may contain highly toxic ingredients such as mold, rat feces, traces of lead and arsenic and asbestos dust."

A federal flavor ban is clearly unpopular and would further benefit black markets while harming public health and federal, state, and local tax revenues. While the regulation is currently on the backburner, the FDA should learn valuable lessons from California's example and drop the menthol ban altogether.