After more than a decade of consideration, the US Food and Drug Administration has taken the first steps toward banning menthol flavored cigarettes and flavored cigars from the market.
The move might not have happened were it not for a Citizen’s Petition filed more than seven years ago by the Public Health Law Center, spurred on by litigation filed last year against the FDA by the African American Tobacco Leadership Council, Action on Smoking and Health, and others. Were it not for this legal advocacy, Big Tobacco would have continued to target youths and the Black community — 85 percent of Black smokers use menthol cigarettes. The FDA, which has come under attack for dithering on tobacco issues, deserves praise for evaluating the evidence and, albeit belatedly, taking this significant step forward.
Massachusetts is the only state in the nation that has already eliminated menthol cigarettes (and e-cigarettes). A nationwide menthol ban should have been part of the congressional legislation that gave the FDA regulatory authority over tobacco products that Barack Obama signed into law in June of 2009. That law banned all other cigarette flavors except menthol. The ban should have been among the first actions taken by the FDA’s Center for Tobacco Products in 2011 when its own scientific advisory committee found that it would benefit public health to do so.
Undoubtedly, cigarette manufacturers will sue the FDA to prevent the regulation from moving forward. Suing the FDA has been a winning strategy for the tobacco industry which, if not successful on the merit of its claims, has consistently won significant delays. Delays that costs lives while increasing their profits. For example, per federal law, graphic warnings on cigarettes were supposed to go into effect a decade ago. After the industry sued to stop them, they have yet to appear on US cigarette packs despite being adopted by much of the rest of the world.
There is still work to do. First, the restriction on the use of menthol in cigarettes and flavored cigars should extend to electronic cigarettes as soon as possible. The youth vaping epidemic is not going away without decisive action. Since last year, fruit and mint vape flavors are no longer permitted to be sold. Clearly, menthol, derived from mint, should likewise be prohibited as a flavor in e-cigarettes. While preserving menthol flavored e-cigarettes might once have been justified as a way to help transition menthol cigarette smokers to another menthol product with lower health risks, that approach becomes obsolete once menthol cigarettes are no longer available. There simply will no longer be a need to tempt menthol smokers to use a less risky menthol product because there will no longer be menthol smokers. When menthol cigarettes were eliminated in Canada some years ago, large numbers of menthol smokers quit smoking entirely.
Beyond menthol, the fundamental problem with tobacco products is that they are profoundly addictive. Therefore, the next logical step should be for the FDA to craft comprehensive regulation of the use of nicotine in tobacco products. Nicotine levels in cigarettes, which still cause nearly a half million premature deaths in the United States each year, should be reduced to trivial and non-addictive levels. While critics claim that doing so will result in addicted smokers inhaling more in order to get the nicotine they crave, the science does not support this. On the contrary, dramatic reductions of nicotine in cigarettes result in increased quit attempts by smokers. Likewise, the nicotine concentrations in e-cigarette liquid is typically more than twice that which is permitted in Europe. While there’s no reason to permit addictive levels of nicotine in any tobacco product, the very high levels of nicotine in e-cigarettes is low-hanging fruit for immediate FDA action.
Finally, the way to truly end the cycle of experimentation, addiction, disease, and death caused by tobacco products is to phase out their sale entirely. This approach is known as the Tobacco Free Generation policy, and Brookline is the first community in the nation to adopt it, pending approval by the attorney general. The idea is simple: Anyone born on or after a set date can never purchase tobacco product. Period. Brookline selected Jan. 1, 2000. People who have been able to purchase tobacco products may continue to do so but, with the new generation, it stops. The result will be a gradual end to tobacco sales over time and, with it, an end to the century-long public health disaster caused by the tobacco industry’s products.
Mark A. Gottlieb is executive director of the Public Health Advocacy Institute at Northeastern University School of Law, where he is an adjunct professor. Richard Daynard is a University Distinguished Professor of Law at Northeastern University School of Law and president of the Public Health Advocacy Institute.