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FDA delays menthol ban following lobbying war

Studies have found menthol products popular with groups Biden needs in 2024

The Food and Drug Administration delayed rules that would ban menthol cigarettes and flavored cigars.
The Food and Drug Administration delayed rules that would ban menthol cigarettes and flavored cigars. (Mario Tama/Getty Images)

The Food and Drug Administration on Wednesday delayed rules that would ban menthol cigarettes and flavored cigars in what many see as a nod to the intense lobbying and fragile political environment heading into President Joe Biden’s expected 2024 rematch with former President Donald Trump.

The administration signaled the decision by updating its regulatory agenda to bump the rules from their original target date in August to March 2024. The White House Office of Management and Budget has scheduled meetings on the rules with lobbyists and advocates through January. 

A spokesperson said the agency “remains committed” to finalizing the rules “as expeditiously as possible,” but did not offer a reason for the delay.

The delay is a major victory for the declining tobacco industry, which is increasingly moving into the vaping space as cigarette use wanes. But a battle over a menthol ban is still playing out in California, where R.J. Reynolds is locked in an ongoing fight with the attorney general over what qualifies as a flavored product under state law.

Public health advocates condemned the delay, accusing the administration of caving to tobacco interests.

“In the last few weeks, the tobacco industry has increased pressure on the White House to delay or stop the advancement of these rules. The tobacco industry will do anything to protect their profits at the expense of public health,” American Lung Association’s President and CEO Harold Wimmer said in a statement. “The White House should not fall to the tobacco lobby’s campaign to spread false narratives. Delaying the promulgation of these rules will result in more death and disease from tobacco use.”

Around 18.5 million people smoke menthol cigarettes, according to FDA estimates, which accounts for more than a third of smokers overall. Menthols are especially popular among Black smokers, with studies showing that roughly three-quarters of Black smokers prefer menthols.

Menthol cigarettes are also more popular with underage smokers, with the FDA estimating that nearly half use them. 

Biden’s poll numbers with Black and youth voters, whom he needs to turn out in large numbers in 2024, have been sagging lately. 

Black voters backed Biden over Trump 87 percent to 12 percent according to exit polls taken by networks in 2020, while Biden won the 18-29 age group by around 25 points, exit polls also showed. The legal age to purchase tobacco products is 21.

The FDA proposed the ban in April 2022, but would have exempted some products on a case-by-case basis, such as low-nicotine cigarettes. Regulators were also expected to propose limits on nicotine levels for all cigarettes in the near future. 

Critics have raised concerns about the ban’s potential for over-policing of Black people and a new illicit market as arguments against the rules, while advocates cite the industry’s historic marketing toward Black people as evidence of the need to ban the products.  

The pending ban split Congress, with House Republicans attempting to block the menthol and nicotine restrictions through the fiscal 2024 Agriculture spending bill. A Senate-passed bill from bipartisan appropriators Patty Murray, D-Wash., and Susan Collins, R-Maine, however, does not include the restrictions.

The dispute has spilled into the vaping debate, since the agency has yet to authorize any e-cigarette product with a flavor other than tobacco. Vaping proponents say the FDA is stifling a potentially safer product market through its strict approval parameters. 

The FDA would likely have faced legal challenges to a menthol ban. R.J. Reynolds, the parent company of Newport and Camel brands, is currently suing California over Attorney General Rob Bonta’s conclusion that its new “cooling” cigarettes violate the state’s ban on most flavored nicotine products. 

Reynolds and Kool parent company ITG Brands LLC both introduced a synthetic cooling agent into their cigarettes in an attempt to circumvent the state’s menthol ban. Reynolds is asking a state court to preemptively block enforcement after Bonta issued warning letters to both companies in April.

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