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

References

  1. J. Ducharme, The FDA Is Moving Forward with a Menthol Cigarette Ban. Here’s What the Science Says, Time, 4 May 2022, accessed May 2022
  2. abcFood and Drug Administration, FDA Proposes Rules Prohibiting Menthol Cigarettes and Flavored Cigars to Prevent Youth Initiation, Significantly Reduce Tobacco-Related Disease and Death, press release, 28 April 2022, accessed May 2022
  3. abcdefFood and Drug Administration, Tobacco Product Standard for Menthol in Cigarettes, 5 April 2022
  4. abFood and Drug Administration, Tobacco Product Standard for Characterizing Flavors in Cigars, May 2022
  5. Government of Canada, Order Amending the Schedule to the Tobacco Act (Menthol), Order effective 2 October 2017
  6. Tobacco Control Legal Consortium et al, Citizen Petition to U.S. Food and Drug Administration, Prohibiting Menthol as a Characterizing Flavor in Cigarettes, 12 April 2013, accessed May 2022. Available from www.publichealthlawcenter.org
  7. Euromonitor International, Global market share for menthol and capsule cigarettes, 2014-2020, accessed September 2020 (paywall)
  8. abS. W. Rose, M. S. Amato, A. Anesetti-Rothermel et al, Characteristics and Reach Equity of Policies Restricting Flavored Tobacco Product Sales in the United States, Health Promotion Practice, 21(1_suppl), 44S-53S, 2020
  9. World Health Organization, Partial guidelines for implementation of articles 9 and 10 of the WHO Framework Convention on Tobacco Control: regulation of the contents of tobacco products and of tobacco product disclosures, WHO website, 2012, accessed March 2020
  10. P. McGreevy, California bans flavored tobacco sales in response to a surge in teen use, Los Angeles Times, 28 August 2020, accessed September 2020
  11. Campaign for Tobacco Free Kids, States and localities that have restricted the sale of flavoured tobacco products, factsheet, 2022, accessed May 2022
  12. abBritish American Tobacco, Transforming Tobacco: Annual Report 2018, BAT website, 2019, accessed March 2020
  13. B. Chapman, £7bn wiped off tobacco company stocks after report regulator will ban menthol cigarettes, The Independent, 12 November 2018, accessed March 2020
  14. A. Gray, A. Edgecliffe-Johnson, Big Tobacco prepares to fight proposed ban on menthol cigarettes, Financial Times, 17 November 2018, accessed March 2020
  15. K. Ackert, B. Brock, S.C. Friedrichsen et al Countering tobacco industry tactics on the economic costs of restricting menthol tobacco, Tobacco Control 2020;29:e113-e114, doi:10.1136/tobaccocontrol-2020-055737
  16. Mixed Reactions to Menthol and Cigar Flavors Ban, Tobacco Reporter, 2 May 2022, accessed May 2022
  17. Food and Drug Administration, FDA Commits to Evidence-Based Actions Aimed at Saving Lives and Preventing Future Generations of Smokers, press release, 29 April 2021, accessed September 2021
  18. abcdCampaign for Tobacco Free Kids, Hidden Agenda: Tobacco Industry Interference with State and Local Policy, 2022, accessed October 2022
  19. abcdB. Stockton, E. Baumgaertner, R. Lindsay, Paid Protesters Free Lunches and Backroom Chats: Inside the Menthol Lobbying Machine, Bureau of Investigative Journalism, 25 April 2022, accessed October 2022
  20. M. Hall, W. Hickey, How an American tobacco giant is quietly investing big money in hundreds of political races across the nation, Business Insider, 21 May 2022, accessed October 2022
  21. N. Florko, Tobacco companies shower Black Democrats with campaign cash, Stat News, 20 October 2022, accessed October 2022 (paywall)
  22. A. Brown, Tobacco Companies Target Black Democrats Who Are Desperate For Campaign Cash, Moguldum, 22 October 2022, accessed October 2022
  23. abcP. McGreevy, Tobacco industry could ask California voters to overturn ban on flavored tobacco sales, Los Angeles Times, 31 August 2020, accessed September 2020
  24. Public Health Law Centre, Menthol Ban: Highlighting the Facts and Rebutting Tobacco Industry Misinformation, factsheet, undated, archived 28 July 2021, accessed October 2022
  25. Action on Smoking and Health US, ASH & AATCLC File Lawsuit Against FDA, ASH press release, 17 June 2020, accessed July 2020
  26. Public Health Law Center, Supplement to Menthol Citizen Petition: Prohibit Menthol as a Characterizing Flavoring of Cigarettes and Cigarette Smoke, March 2021, accessed May 2022
  27. P. McGreevy, Proposed California ban on flavored tobacco sales sparks discussion of systemic racism, Los Angeles Times, 24 August 2020, accessed September 2020
  28. abAmerican Medical Association (AMA) joins lawsuit against FDA, AMA press release, 3 September 2020, accessed September 2020
  29. Truth Initiative, Making Menthol Black, video, available from truth.com, accessed September 2021
  30. R.K. Jackler, D. Ramamurthi, J. Willett et al, Advertising Created & Continues to Drive the Menthol Tobacco Market: Methods Used by the Industry to Target Youth, Women, & Black Americans, SRITA Research Paper, October 4, 2022. Available from https://tobacco.stanford.edu/publications
  31. American Heart Association, Report: Tobacco industry continuing decades-long targeting of Black communities, women, youth with menthol products, press release, 4 October 2022, accessed October 2022
  32. S.W. Rose, A. Anesetti-Rothermel, S. Westneat et al, Inequitable Distribution of FTP Marketing by Neighborhood Characteristics: Further Evidence for Targeted Marketing, Nicotine & Tobacco Research, Volume 24, Issue 4, April 2022, Pages 484–492, doi:10.1093/ntr/ntab222
  33. Truth Initiative, Black D.C. neighborhoods have greater marketing for flavored tobacco products, including cigars, website, April 18 2022, accessed October 2022
  34. E. Baumgaertner, B. Stockton, R. Lindsay, How Big Tobacco used George Floyd and Eric Garner to stoke fear among Black smokers, L.A. Times, 25 April 2022, accessed October 2022
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