Flavoured and Menthol Tobacco in the US

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Proposed US-wide (Federal) Menthol and Flavour Ban

On 28 April 2022 the US Food and Drug Administration (FDA) announced proposed standards for banning menthol as a characterising flavour in cigarettes and cigars with any characterising flavour other than tobacco.12 The US had previously banned characterising flavours, except menthol in cigarettes in 2009 (see below).

The rules would come into effect one year after the final publication of the regulations (not yet provided).34 This time period is similar to the EU ban which the tobacco industry exploited whereas the Canadian ban was implemented within six months.5

The proposed standards would also ban characterising flavours in components or parts of cigarettes and cigars (filters, filter wrapper, paper, filter tips, drops, capsules, flavour cards) whether or not they were sold separately.3 This was not the case with the EU ban, an omission which provided a loophole for the industry to exploit.

The FDA stated that the ban would apply to products being manufactured, distributed or sold in the US.23 It emphasised that enforcement would be at the company level (manufacturers, distributors, wholesalers, importers and retailers) rather than at individual (smoker) level.23 It would not restrict flavoured products intended for export.  The FDA suggested that replacing existing local bans with a nationwide ban would reduce opportunities for illicit trade.3

Menthol cigarettes and tobacco products are yet to be banned US-wide. This is despite the Tobacco Control Act of 2009 making the issue of menthol in cigarettes an FDA priority, an FDA report detailing menthol’s harms in 2011, and efforts by health organisations and non-governmental organisations (NGOs) to push the FDA to ban menthol cigarettes.6

Flavour and Menthol Bans in Place in the US

Cigarette flavours, excluding menthol, were banned US-wide in 2009 as part of the Tobacco Control Act.  At this time menthol represented nearly one third (27%) of the cigarette market.78 By 2018, 36% of cigarettes sold in the US were menthol, and less than 1% of the US population lived in areas where menthol cigarettes were banned.89

In 2020, Massachusetts was the first state to pass state-wide legislation banning all flavoured tobacco products, including menthol. Later the same year California passed a similar law, although some cigars and pipe tobacco were exempt.10 There are multiple other local bans and restrictions in place across the country – for more information see the factsheet produced by the Campaign for Tobacco Free Kids.11

Industry Opposition to Menthol Bans in the US

The US continues to be an important market for tobacco companies’ menthol brands. In its 2018 Annual Report, BAT said that after it acquired US tobacco company RJ Reynolds in 2017:

“The sales of Newport, together with the other menthol brands of the Group’s operating subsidiaries, represent a significant portion of the Group’s total net sales”.12

In the same report BAT repeatedly noted that any future flavour bans would risk having a negative impact on its business.12 A proposed federal (nationwide) ban in 2016 led to a drop in the value of tobacco companies’ shares, although the ban was not implemented.1314

The tobacco industry claimed that stopping convenience stores selling menthol cigarettes as planned in Minnesota (by restricting their sale to adult only tobacco and stores selling alcohol) would lead to catastrophic financial and job losses.  However independent research suggested losses would be six times smaller: tobacco does not drive use of convenience stores as much as the tobacco industry claims.15

Arguments against a USA-wide ban from the tobacco industry, included that there was not enough scientific evidence to support the ban, because, they claimed, menthol does not increase the disease risk, or markers for dependence or addiction.316 Some argued there should be an exemption for premium cigars.4

In April 2021, the FDA announced that it was “working towards” a full menthol and flavour ban in cigarettes and cigars, stating that:

“This decision is based on clear science and evidence establishing the addictiveness and harm of these products and builds on important, previous actions that banned other flavored cigarettes in 2009.”17

Industry Lobbying and Interference in US Menthol Bans

Tobacco companies have extensively lobbied against legislation, both nationally and in individual states, in order to oppose or delay the implementation of regulations on menthol and flavour.

The Campaign for Tobacco Free Kids (CTFK) has described tobacco companies repeated attempts to block or delay legislation by filing lawsuits and funding related campaigns, including in San Francisco in 2017, and California in 2019 and 2020.1819 This is a well-documented industry strategy.

Tobacco companies have targeted politicians and law makers with direct financial contributions, and funded third party organisations to lobby on their behalf.1819202122 An investigation by the Bureau of Investigative Journalism (BIJ) revealed how consultants working for Reynolds American did not always declare their links to industry.19

In September 2020, the Los Angeles Times reported that the California Coalition for Fairness had submitted a request for a referendum to overturn the Californian ban.23 The organisation did not provide details of its members, but the newspaper noted that ban was proposed by Attorney Aaron Agenbroad who has previously worked for RJ Reynolds (now BAT) and Jaime Rojas, a spokesman for a tobacco industry campaign to overturn a ban on flavoured tobacco in San Francisco.23 RJ Reynolds also ran a television ad campaign against the ban.23

Tobacco companies have also given financial support to organisations and individuals working within the Black community.18 Some have gone onto to make claims of unexpected impacts of menthol bans on Black people, including criminalisation and harm to community relations.18 The US Public Health Law Centre has rebutted some of this industry misinformation around this issue.24

In June 2020, two US NGOs (African American Tobacco Control Leadership Council and Action on Smoking and Health) filed a lawsuit against the FDA to try to force it to introduce a ban in order to reduce health inequalities, noting that 85% of African American smokers smoke menthol cigarettes.2526 See also the STOP statement on this legal action and the Truth Initiative factsheet

The same figure has been used by the tobacco industry to lobby against the ban, arguing that it is discriminatory: “giving special treatment to the rich, and singling out communities of color”.27 In September 2020, the American Medical Association (AMA) joined the lawsuit as co-plaintiffs.28 The president of the AMA said that:

“For generations, tobacco companies have promoted menthol cigarettes to the African American community, preying especially on African American youth… This action is long, long overdue”.2829

Marketing of Menthol to the Black Community

There is a long history of targeted marketing of menthol by the tobacco industry. In the 1960s starter packs and discounts were distributed in newspapers and magazines popular in Black communities. Black models and famous Black sports people and entertainers have appeared on adverts.  Images relating to Black Power and Black History month have been used in marketing, and tobacco companies have made donations to music festivals. They have also given financial donations to  political and community organisations and leaders.3031

Marketing of flavoured tobacco products was still disproportionately found in Black neighbourhoods in Washington in 2018/19, while other tobacco advertising was not.3233

The BIJ investigation report stated that RAI consultants had “exploited concerns about police brutality against Black citizens”.1934

Relevant Links

Food and Drug Administration, Tobacco Product Standard for Menthol in Cigarettes (United States, 5 April 2022)

Public Health Law Center: Menthol and Other Flavoured Products, PHLC website (United States), including FDA timeline of key events

Centers for Disease Control and Prevention, Office on Smoking and Health Summary of Scientific Evidence: Flavored Tobacco Products, Including Menthol February (United States, 2021)

Truth Initiative, Menthol: Facts, stats and regulations (United States, April 2022)

TobaccoTactics Resources

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