Since the Food and Drug Administration (FDA) indicated it would release rules to prohibit menthol cigarettes and flavored cigars, public health advocates have waited for the final rule to be announced. After a comment period that ended in August of 2022, the rules are in the final review stage at the Office of Information and Regulatory Affairs (OIRA). Since its movement to OIRA, the rules continue to languish. The current expected date for the release of the rules is March 2024, seven months after the original expected release in August of 2023.

In the meantime, industry interests and public health advocates continue to meet with government officials to influence them on the rules. On January 4, 2024, the Public Health Law Center and our partners at the Center for Black Health and Equity had an opportunity to meet with OIRA. At the meeting, we expressed the need for the menthol and flavored cigar rules to be released without delay. We pointed out that smoking is one of the leading causes of preventable deaths in the United States, and that the pending rule can save millions of lives.

Our organizations raised concerns about tobacco industry practices that disproportionately target Black communities with menthol cigarettes, complicating cessation efforts even though nearly three-quarters of Black smokers aspire to quit. We stressed the critical need for smoking cessation programs that are accessible, affordable, and culturally appropriate.

We also addressed and refuted the industry's disingenuous claims that prohibiting menthol cigarettes and flavored cigars might lead to increased police violence against Black Americans, arguing that such claims are not supported by evidence. The unfortunate reality is that police in the U.S. kill someone, often a Black person, almost daily. We pointed to the broader issue of systemic violence, emphasizing that the presence of menthol cigarettes in the market is not a factor in such incidents and that a more comprehensive solution is needed to address the root causes of police violence.

The White House has noted a reluctance to implement the menthol and flavored cigar rules because of a belief that it will depress the Black vote. While smoking is still a significant problem in the U.S., most Americans do not smoke. And the majority of Black Americans are basing their voting decisions on issues such as the economy, healthcare, jobs, and safety. Cigarette accessibility is not a voting concern for Black Americans; instead, the concern seems to be mainly a matter of internal politics. The only way this is a salient voting issue is that continued delay of the menthol ban means that Black health continues to be at risk, which will be detrimental to Black voters.

Finally, the Public Health Law Center reminded the federal government that, regardless of the path it follows regarding the rules, lawsuits are likely to follow. Industry lawsuits should not deter implementation of the menthol and flavored cigar rules: the industry has litigated virtually every effort to enforce tobacco control laws around the country. These industry lawsuits are generally unsuccessful, and in states that have implemented flavor bans, the tobacco industry has yet to win its case. Should the federal government fail to enact the menthol and flavored cigar rules, public health advocates have indicated that they also intend to bring forward a lawsuit to see the rules implemented. Fighting a lawsuit from public health advocates, especially those representing the Black community, would not be a good position for the federal government.

Removing menthol cigarettes and flavored cigars from the shelves will support Americans who want to quit smoking and will make smoking less enticing to those who do not smoke. These rules have the potential to save Black lives and the lives of all Americans. Further delays are not beneficial to the health and safety of the American population. The federal government should implement the menthol and flavored cigar rules without further delay.

Esther Agbaje, Senior Staff Attorney
January 18, 2024