Anthony Behar/Sipa USA via AP Images
Cigarettes, including menthols in green packages, displayed for sale in a convenience store in Queens, New York, May 17, 2022
In mid-January, Black community leaders and public-health advocates pushed a casket painted to look like a pack of cigarettes through the streets of the nation’s capital. In front of the White House, the procession turned into a rally: Faith leaders, poets, and activists gave speeches to a cheering crowd. The protest’s purpose was to celebrate the death of menthol-flavored cigarettes. But menthol isn’t dead yet.
In December, the Biden administration backed off its plan to ban menthol cigarettes, reneging on a pledge it made in 2022. The decision marks a win for Big Tobacco, which has aggressively lobbied against menthol bans and challenged them in court.
Menthol is the last frontier for flavored tobacco products. The 2009 Tobacco Control Act barred the sale of all flavored tobacco except menthol. Since then, anti-smoking advocates have been engaged in a yearslong battle to ban the additive.
In 2020, the African American Tobacco Control Leadership Council (AATCLC) sued the FDA in the U.S. District Court of Northern California for an “unreasonable delay” in banning menthol. The organization’s complaint cited the ample evidence available to the regulatory agency that the mint flavoring makes it easier to start smoking and harder to quit. The American Medical Association later joined the lawsuit. After two years of back-and-forth in the courts, the FDA released a proposed rule to ban menthol products in April of 2022. The agency then announced it was planning to make the rule final by the end of 2023. Temporarily assuaged, the AATCLC announced its support for dismissing the lawsuit in June of 2022. Twenty months later, the final rule has yet to be issued.
The fight to ban menthol has become not only a public-health issue but a civil rights question. There is a sordid history of the tobacco industry using targeted advertising to drive up the popularity of menthol cigarettes among Black and LGBTQ communities. According to CDC estimates, over 80 percent of Black adults who smoke prefer menthol cigarettes compared with 34 percent of white smokers.
A seminal research paper from 2002 titled “Smoking With the Enemy” pulled from internal industry documents to reveal how tobacco companies strategically developed relationships with Black leadership organizations and then used those relationships to ward off tobacco regulation.
That trend continues to this day.
Carol McGruder, one of the co-chairs of the AATCLC, told the Prospect that some leaders in the Black community who enjoy the financial backing of Big Tobacco have been among the most vocal advocates against menthol bans. McGruder specifically called out Dr. Ben Chavis, a civil rights leader and the president of the National Newspaper Publishers Association (NNPA). The NNPA lists the tobacco company Reynolds American as a partner on its website. In an interview with CNN in December, Chavis invoked the death of Eric Garner in New York as evidence of the potential harm a ban on menthol cigarettes could cause. Garner was confronted by NYPD officers for allegedly selling untaxed loose cigarettes.
Advocates for the ban have pointed out that the rule would only prohibit the sale of menthol cigarettes; it would not make smoking or possessing menthol cigarettes illegal.
“They’re able to take that incident and use our gut reaction to seeing this video of this man being choked to death in New York as a way to block public-health policy [meant] to save the lives of 45,000 Black people who die directly every year from tobacco-induced diseases,” said McGruder.
The Rev. Al Sharpton and his organization, the National Action Network, have also worked behind the scenes to push back on potential menthol bans. The Hill reported that senior vice president of the National Action Network, Ebonie Riley, participated in a meeting with Biden administration officials in late November to advocate for postponing the FDA final rule.
The fight to ban menthol has become not only a public-health issue but a civil rights question.
In light of inaction at the federal level, some states have taken up the fight to ban menthol. In 2020, Massachusetts became the first state to implement a ban on flavored tobacco products. In 2023, California did the same. Hundreds of local municipalities across the country have also banned menthol, flavored vape products, or both.
There have been mixed results when it comes to the effectiveness of local bans. Many smokers who prefer menthol or other flavors can still buy their products of choice by driving across state lines or ordering online.
In the wake of state flavor bans, tobacco companies have rolled out new “concept flavors,” specifically for smokers who choose menthol. For example, Camel put out a new line of “tropical oasis” cigarettes in California. The packs feature nearly identical packaging as their pre-ban menthol counterparts. Moreover, researchers found an agent called WS-3 that mimics the cooling effect of menthol in some packs manufactured to be sold in California after the ban went into effect.
Still, public-health advocates believe state bans are a no-brainer.
Mark Meaney, the deputy director of commercial tobacco control programs at the Public Health Law Center, told the Prospect, “We would absolutely prefer to have a comprehensive federal policy, but we know that’s probably not going to happen in the short term.”
THE STRUGGLE OVER MENTHOL CIGARETTES AND CIGARS is not the only front on which the tobacco industry appears to be outflanking regulation, however. Alternative nicotine delivery products including vapes and in-mouth pouches have become much more popular in recent years, especially among young people.
Five years ago, the undisputed leader in the flavored vape market was Juul, a San Francisco–based company with a tech startup aesthetic. But Juul has since faced a litany of lawsuits over advertising that targeted young people. Last year, Juul settled a lawsuit with six states and the District of Columbia for $462 million. In 2020, the FDA banned most flavored vape pods (excluding menthol) for cartridge-based reusable e-cigarettes. Users who prefer Juul now must choose between tobacco and menthol flavors.
In the flavored-vape void, Chinese companies have flooded the American nicotine market with flavored disposable vapes—even though none have been authorized by the FDA for sale. Though these are not legacy tobacco corporations like Philip Morris International and Reynolds American, the Chinese vape companies employ the same bait-and-switch strategies.
The China-based company Shenzhen iMiracle Technology produces Elf Bar, which was once the most popular disposable vape in the country. After the FDA specifically targeted shipments of Elf Bars, the company switched the name to EBCreate to skirt oversight. According to an Associated Press investigation, 5,800 unique models of disposable vapes are currently being sold in convenience stores across the country. Almost all of them are imported from China.
In December, the FDA and U.S. Customs and Border Protection seized 1.4 million units of illegal e-cigarettes at Los Angeles International Airport. All the products originated from China, including some produced by Shenzhen iMiracle Technology. In the FDA press release celebrating the seizure, officials noted that the operation was only possible because of months of investigative work.
Adam Hoffer, the director of excise tax policy at the Tax Foundation, told the Prospect that the companies willing to operate in the legal gray zone, like Shenzhen iMiracle Technology, can make a fortune while companies waiting for FDA authorization are stuck on the sidelines.
“Through its actions, the FDA has essentially just handed off the American vaping market to Chinese operators,” said Hoffer.
Zyn, in-mouth nicotine pouches that come in a variety of flavors, have increased in popularity since being introduced to the American market in 2014. Philip Morris International, which owns the company that manufactures Zyn, advertises the tobacco-free nicotine pouches as “a far better choice” and a “much better alternative” to cigarette smoking.
In January, Sen. Charles Schumer (D-NY) called for greater federal regulation of the product, citing concerns that Zyn has become more popular among teens. In response, multiple Republican lawmakers voiced their outrage online, including Rep. Marjorie Taylor Greene, who called for a “Zynsurrection.”
Zyn has filed a premarket tobacco product application to the FDA, which has not been granted or denied. Still, like flavored disposable vapes, Zyn canisters are available for purchase across the country even though the product lacks an FDA marketing order.
For public-health activists, it is a constant game of whack-a-mole. “We’re always behind the eight ball trying to catch up,” said McGruder of the AATCLC.
