Food and Drug Administration sends White House office proposed regulations banning menthol cigarettes and flavored cigars

Ash.org

On Friday, the Food and Drug Administration sent the White House Office of Management & Budget its long-in-the-making regulations that would ban the sale of menthol cigarettes and flavored cigars.

 

OMB "serves as a clearinghouse of sorts for executive actions like this," notes Halfwheel, a cigar site. "While the Biden administration is in favor of both bans, OMB is also likely to add scrutiny to FDA’s plans, including asking the agency questions about the economic impacts of the bans—both for the government and businesses—as well as questioning certain legal aspects of the proposal. Historically, OMB has also been a place where the tobacco industry has lobbied to try to soften the impact of rules."

Ten years ago, citizens petitioned the FDA for impose the bans, and went to federal court to force the agency to act. Ordered to respond by April 29, 2021, the FDA said "it was planning on banning both flavored cigars and menthol cigarettes, plans that it said would be announced within a year," Halfwheel notes. "Nearly a year to the date—April 28, 2022—FDA announced that it was moving forward with both proposed regulations, starting the formal rulemaking process that the agency must follow when it crafts new regulations. This included creating proposed rules, as well as allowing for comments about the proposed rules. The commenting period ended in early August 2022."

Menthol cigarettes made up 36% of all cigarette sales in the U.S. in 2018. Anti-smoking groups have cited research that shows cigarette companies have deliberately targeted African American communities, especially youth, with marketing menthol cigarettes, cigars and other tobacco products. Menthol products also have a strong appeal for youth, since menthol numbs the throat and reduces irritation from smoking and makes it easier for them to start smoking.

Once the rules clear OMB, expected before the end of the year, they would not take effect for a year, FDA has said. "The tobacco industry is likely to sue FDA and will likely ask for an injunction until after those lawsuits are resolved, further delaying the enforcement," Halfwheel reports.

FDA proposes ban on menthol cigarettes and cigars, popular among Blacks, whose leaders are divided on the matter

Photo from ash.org

Last week the U.S. Food and Drug Administration announced its long-anticipated plan to ban menthol cigarettes and all flavors in cigars. 

“The proposed rules would help prevent children from becoming the next generation of smokers and help adult smokers quit,” Health and Human Services Secretary Xavier Becerra said in a news release. “Additionally, the proposed rules represent an important step to advance health equity by significantly reducing tobacco-related health disparities.”

When added to cigarettes and cigars, menthol's minty taste and cooling effect limits throat irritation, thereby making the products more appealing to smokers -- especially new and young smokers. The  release adds that menthol also interacts with nicotine in the brain to enhance nicotine's addictive effects and makes it more difficult to quit smoking. 

One study estimates that banning menthol in cigarettes and cigars in the U.S. would lead to a 15% reduction in smoking as early as 2026 and prevent upwards of 650,000 deaths by 2060.

The Washington Post reports on another study published in the peer-reviewed journal Tobacco Control that "found that if a menthol-cigarette ban in the United States were to have the same effect as a Canadian menthol ban, more than 1.3 million additional smokers would quit, including more than 381,000 African Americans." Nearly 85% of Black smokers smoke menthol cigarettes, compared to 30% of white smokers who smoke menthols, says the FDA. 

The proposed menthol ban has divided Black leaders. Ben Crump, a Black civil-rights attorney, told Politico, “There’s a difference between theory and reality. The reality is, we know once you make laws and such then you have local and state actors who use those as weapons to marginalize Black people.”

FDA says it "cannot and will not enforce against individual consumers for possession or use of menthol cigarettes or flavored cigars" and enforcement will only address the industry, but some Black leaders, including Rev. Al Sharpton and others, disagree that this will be the reality. 

The African American Tobacco Control Leadership Council supports the proposed rule. "This is a major step forward in saving Black lives." Dr. Phillip Gardiner, co-chair of the council, said in a statement.   

Gardiner went on to encourage tobacco control activist to continue to fight to ban the sale of menthol tobacco products at the local, state and federal level, noting that the rule-making process and court challenges by the tobacco industry could mean it will be years before this ban could becomes effective.

Stanton Glantz, who continues to conduct tobacco research even after retiring from the University of California San Francisco in 2020, writes on his blog that "FDA has built a strong foundation to justify prohibiting menthol as a characterizing flavor in cigarettes," but its justification for granting exceptions for heated tobacco products and low nicotine-cigarettes "is very weak" and "should be dropped."  

The New York Times published an essay written by Keith Wailoo, a professor of history and public affairs at Princeton University, that provides a detailed walk through the history of how the tobacco industry hooked black smokers on menthols. He is the author of "Pushing Cool: Big Tobacco, Racial Marketing, and the Untold Story of the Menthol Cigarette." 

"After decades of outcries from communities and public health experts about the health inequities and dangers posed by menthol marketing (with the NAACP now urging a ban), the FDA’s proposed rule that would impose the ban, announced April 28, is a long-awaited step that will save hundreds of thousands of lives in the decades to come," Wailoo writes. "We should not be distracted by those who work on behalf of the tobacco industry while claiming to speak for Black health and well-being. They are part of the web that has maintained the stranglehold, enticing consumers with deceptive promises."

The FDA says that in 2019 there were more than 18.5 million menthol cigarette smokers aged 12 and older in the U.S. which included high rates of youth, young adults, African Americans and other racial and ethnic minorities. In 2020 menthol made up 37% of the cigarette market in in the U.S., up from 26% in 2000, according to The Truth Initiative menthol fact sheet. 

The FDA is accepting public comments on its proposed rules for menthol cigarettes and flavored cigars through July 5. 

UK study finds e-cigarettes aren't replacing traditional cigarettes, but their sales rise as unregulated TV ads for them increase

A study led by a University of Kentucky researcher found that electronic cigarettes have not become a substitute for traditional cigarettes, but their use is increasing, especially as television commercials for the products increase, Carol Lea Spence reports for UK AgNews.

“Cigarette purchases have dropped a bit, from about 90 percent to 80 percent of all tobacco products during the past 15 years, but it’s still a big player. Other tobacco product sales are growing, though—particularly e-cigarettes,” Yuqing Zheng, lead researcher and an agricultural economist in UK's College of Agriculture, Food and Environment, told Spence.

The study, published in The American Journal of Agricultural Economics, looked at the habit formation of non-cigarette products and studied usage in five categories, including: cigarettes, e-cigarettes, smokeless tobacco, cigarillos and cigars, Spence reports.

The study collected data from convenience stores in 30 U.S. markets, looking for evidence to support that e-cigarettes had become a substitute for traditional cigarettes. It also investigated whether consumers purchased products based on cost and advertising.

They found that when the price of e-cigarettes went up, it did not increase the demand for traditional cigarettes. And not surprisingly, it also found that the purchase of e-cigarettes increased with increased TV advertising, but not with increased magazine advertisements.

“This adds to the policy discussion,” Zheng told Spence. “While cigarettes are strictly regulated in terms of advertising, there are no advertising restrictions on e-cigarettes.”

The study also found that based on consumption patterns, all five tobacco products in the study were habit forming, and e-cigarettes had the "highest degree of habit formation," Zheng told Spence.

Zheng attributed that to three things: Most e-cigarettes contain nicotine, which is addictive; they can be used in places where traditional cigarettes are banned; and because they don't burn out, people use them for longer periods of time, Spence reports.

Zheng told Spence that there is no scientific evidence to prove e-cigarettes are less harmful than cigarettes, and noted that the study found that people will generally buy traditional cigarettes regardless of the price, but in general are "more responsive to price increases" of non-cigarette tobacco.

Advocates hope push in rural areas will help pass statewide smoking ban, at least in the state House

By Justin Richter

University of Kentucky College of Communication and Information

Kentucky has had a love affair with both growing and smoking tobacco, but supporters of a statewide smoking ban believe that smoke should not be shared with people who don’t smoke.

Rep. Susan Westrom

For the fourth straight year, Democratic State Rep. Susan Westrom of Lexington is filing a bill for a smoking ban in workplaces and enclosed public places. She and her allies are focusing increased attention in the state’s rural areas, where smoking is more prevalent.

This summer Westrom visited several towns, from Owensboro to tiny Sandy Hook, to talk with fellow legislators and their constituents about the bill. “We want to be able to access legislators in the rural areas, meet them on their own turf,” showing them their constituents care about secondhand smoke, Westrom said.

A third of the adults in Eastern Kentucky smoke, and almost a third of those in Western Kentucky do, according to the Behavioral Risk Factor Surveillance System, an ongoing telephone survey by the federal Centers for Disease Control and Prevention.

"We're going to need a lot more legislative support, and we're pretty much doing that one legislator at a time," Smoke-Free Kentucky Coordinator Betsy James said at last month's meeting of Kentucky Voices for Health, an association of health lobbying groups. "This is sort of a rural-urban issue, so we do need help out in the counties."

Advocates are hoping to build on the passage of smoking bans in 28 Kentucky cities and 10 counties.  “We’ve got 38 different locations that have smoke-free ordinances and we want to meet the standard we have in Louisville and Lexington,” Westrom said in an interview. 

Louisville and Lexington were two of the first cities to ban smoking in enclosed public places.  Each had exemptions, including bars and clubs, but by 2008 both went to comprehensive bans, unlike some other jurisdictions in the state that have large exceptions.

The Hopkins County Board of Health, for example, passed a regulation in 2009 that permits individuals from smoking in workplaces but has large exceptions that allow individuals to smoke in private clubs, privately rented restaurants, as well as hotel and motel rooms that are rented.

Westrom is working with Dr. Ellen Hahn, director of the Tobacco Policy Research Program at the University of Kentucky College of Nursing, who has led the efforts to pass local smoke-free measures.  After working for years on local bans, she is now working on both local and state fronts. 

Work towards smoke-free public enclosed places has gained ground steadily since Hahn started 10 years ago, but most of the state remains unaffected by any smoking ordinances or regulations.

According to a booklet prepared by the College of Nursing and the state Cabinet for Health and Family Services, “70 percent of Kentuckians are regularly exposed to secondhand smoke in the workplaces and public places.”

Smoking is more common in Kentucky than any other state, with 28.3 percent of adults smoking, compared to 19 percent nationwide according to the CDC. Kentucky Youth Advocates recently released a study done that revealed Kentucky has one of the highest rates of smoking during pregnancy in the nation. 

Westrom and Hahn have been working together since 2011, when Westrom first filed a state-wide smoking ban bill. The first bill did not get out of the House Health and Welfare Committee, but the next two bills did. 

Last year, her bill was then sent to the Judiciary Committee, a sign that it was being taken a bit more seriously, because that panel was more skeptical of it and raised issues that if resolved could help the bill pass.

In 2013 the bill was not given a vote on the House floor, presumably because it did not have enough votes to pass.  Westrom is anticipating getting past the House floor and into the Senate this year. “I think we’re really close in the Senate,” she said, noting that almost every Senate district has at least one smoke-free community.

The Kentucky Chamber of Commerce has supported Westrom’s bill since it was introduced three years ago.  “Over 90 percent of respondents expressed support for a smoke-free law in Kentucky in a recent Chamber survey,” said Ashli Watts, the business lobby’s public-affairs manager.

The chamber is advocating a smoke-free workplace largely because of lost worker productivity due to illnesses causes or worsened by smoking. Research by The Ohio State University's College of Public Health found that every U.S. smoker is costing his /her company an extra $6,000 per year.

Democratic Gov. Steve Beshear said he will continue to support a statewide smoking ban, and that it would be a help to business.  House Speaker Greg Stumbo, D-Prestonsburg, said he hopes the House will pass the bill.

Stumbo spoke at a panel discussion held by the Kentucky Hospital Association with Senate President Robert Stivers, R-Manchester.  Stivers said individual businesses should be able to allow smoking, but said that he would not impose his view on the rest of the Senate.

Teens turning to flavored cigars

A study shows teens are dispensing with cigarettes and turning to flavored mini-cigars with fun flavors — strawberry, chocolate, vanilla — enticing to young palates. (National Cigar Museum picture) "Young smokers say these cigarette-size little cigars and cigarillos — slimmer versions of big cigars — look better and can be bought one at a time instead of spending more than $5 for a pack of cigarettes," writes Lena H. Sun of The Washington Post. "Many teens also think that they are less addictive."

After cigarettes, cigar smoking is the second most common tobacco product used by youth nationwide, according to the Centers for Disease Control and Prevention. About 14 percent of high school students smoke them (18.6 percent among boys and 8.8 percent among girls). Though the Food and Drug Administration banned flavored cigarettes in 2009, it did not apply to cigars. They are only available to adults 18 and older, but many stores in Kentucky do not ask for ID.

In many states, mini cigars are taxed less than cigarettes. Federal excise tax is about 39 cents on a pack of 20 cigarettes. The tax on cigars that are the size of cigarettes is 4 cents for a pack of 20. In Kentucky, the tax rate on a pack of 20 cigarettes is 60 cents. Other tobacco products, including cigars, are taxed 15 percent.

While more enticing and less expensive, they are just as dangerous as cigarettes. "You have the same cancer-causing chemicals but wrapped in flavors that don't let you experience the harsh sensation of cigar or tobacco use," said Donald Shell, interim director for Maryland's Center for Health Promotion, Education, Tobacco Use Prevention and Cessation. (Read more For a fact sheet on mini-cigars, on the Kentucky Cabinet for Health and Family Services' website, click here.