On April 28, 2022, the United States Food and Drug Administration (FDA) announced a pair of proposed rules that would prohibit menthol as a characterizing flavor in cigarettes and ban all flavors in cigars, including premium cigars. While these bans are, as of now, just proposals, they are a major step toward the Biden Administration’s aim of expanding failed prohibitionist policies to include tobacco products. FDA’s written proposals are riddled with falsehoods and misleading evidence. This fact-check is aimed at separating FDA’s “evidence” from the truth.
FDA’s Claim: “The proposed rules would help prevent children from becoming the next generation of smokers” -Secretary of Health and Human Services Xavier Becerra.
Truth: There is exactly zero evidence presented in the proposed rule to support Secretary Becerra’s assertion that it will prevent children from becoming smokers. The most recent data shows youth smokers are less likely to smoke menthol cigarettes (61.2% of youth smokers use non-menthol) than adult smokers (60.9%), and a mere 0.78% of high-schoolers are menthol smokers. Further, youth smoking is at an all-time low across the country. According to the 2019 National Youth Tobacco Survey, less than 5% of high schoolers have smoked even one cigarette over the past month.
Additionally, a Reason Foundation policy study identified that states with the highest rates of menthol smoking were also the states with the lowest rates of youth smoking. If menthol cigarettes were as popular among kids as FDA claims they are, states with high menthol use would also have high youth smoking rates. The data shows just the opposite.
FDA’s Claim: Menthol cigarettes are “harder to quit” than traditional, non-flavored cigarettes.
Truth: Clearly, FDA is not up to date on the scientific evidence that shows there is no statistically significant difference in quit rates between menthol and non-menthol cigarette smokers. This study, published by Vanderbilt University researchers in the Journal of the National Cancer Institute, led Dr. William Blott, one of the study’s authors, to say that they “could not confirm FDA’s report that menthols are harder to quit”. Additionally, the nicotine content in menthol cigarettes is comparable to non-menthols and the health impacts of both cigarettes are similar as well. Dr. Blott’s previous research has indicated that menthol smokers develop lung cancer at rates lower than non-menthol users, likely because menthol smokers tend to start later in life and smoke fewer cigarettes per day than those who smoke menthols. FDA’s proposed rule would surely force many people who smoke menthols to switch to non-menthols and increase the risk to their health.
FDA’s Claim: The removal of menthol cigarettes from the marketplace “is not likely to lead to a surge in illicit menthol use”.
Truth: Any prohibition of popular products boosts the demand for black market goods. In the case of cigarettes, these prohibitions are extremely beneficial to criminal organizations overseas. The illicit tobacco market is being increasingly run by sophisticated, international crime syndicates. The same organizations that smuggle tobacco are often linked to sex trafficking, money laundering, and even terrorism. For this reason, the U.S. State Department has explicitly labelled tobacco smuggling a “threat to national security”. These groups undoubtedly use illicit tobacco revenue to fund their other heinous activities. Prohibiting menthol cigarettes in the United States, as FDA is seeking to do, would be a massive boon to these syndicates, essentially encouraging them to increase smuggling into the United States.
FDA’s Claim: The ban on menthol cigarettes will “advance health equity” in minority communities.
Truth: A driving force behind this rule is FDA’s belief that the prohibition on menthol cigarettes will lower smoking rates in minority communities, specifically among African Americans. However, FDA ignores large swaths of evidence, particularly data from the American Lung Foundation that shows African American and white adults smoke cigarettes at nearly identical rate, even though a larger percentage of Black smokers choose menthols than non-Blacks. According to that same data, African American teenagers smoke cigarettes at rates much lower (3.2% for Black teenagers) than white teenagers (7.2%).
Furthermore, African American communities have historically bore the brunt of prohibitionist policies, most notably the failed War on Drugs. Even though African American and Caucasian populations used drugs at similar levels, enforcement and punishment of drug laws disproportionately impacted Black and Brown people. There is no reason to expect a ban on menthol cigarettes will “advance health equity”, and ample reason to believe it will have the opposite effect.
FDA’s Claim: “FDA cannot and will not enforce against individuals for possession or use of menthol cigarettes.”
Truth: For once, FDA got it right. Yes, they cannot enforce against individuals, but their rule will make it possible for law enforcement across the country to stop, question, and arrest anyone carrying menthols. Possession of untaxed cigarettes is a crime in all 50 states. FDA’s rule would ensure that every menthol cigarette would hereby be untaxed, and therefore a criminal offense.
This is a disaster in the making, as Black adults are more likely to smoke menthols than non-Blacks and are historically over-policed. In the tragic case of Eric Garner, stopped by New York City police for allegedly selling untaxed cigarettes, his interaction with police turned deadly. NYPD placed Garner in an illegal chokehold while Garner repeated the phrase “I can’t breathe” 11 times before passing away. Should a federal menthol ban be approved, there is no question that it will lead to more interactions between police and communities of color with potentially devastating consequences.
FDA’s Claim: Use of flavored cigars among youth, young adults, and older adults in the United States is “common, addictive, and harmful”.
Truth: According to the most recent data, from the U.S. government’s own studies, youth usage of flavored cigars or cigarillos is virtually nonexistent. Less than 4% of youths have ever tried a flavored cigar or cigarillo. Less than 1% of youths are “current” users, meaning they had tried one or more cigars in the past month at the time of the survey. While cigars do contain nicotine, an addictive chemical, they are very different from cigarettes. Cigars are smoked without inhaling and smoked far less often than cigarettes. Further, premium cigars have been labeled a medium risk to health, while traditional cigarettes are high risk.