Biden administration pulls back from banning menthol cigarettes

Civil rights groups fought the ban, saying it would target Black smokers.

December 6, 2023, 5:25 PM

The Biden administration is putting off its plan to ban menthol cigarettes until next March after an aggressive lobbying push by civil rights groups -- some sponsored by Big Tobacco -- who argued a ban would unfairly target Black smokers.

The delay, acknowledged in an online posting Wednesday, is a major defeat for health advocates who have been pushing for years to limit access to menthol cigarettes, which are aggressively marketed in Black communities. According to the Centers for Disease Control and Prevention, menthol can enhance the addictive effects of cigarettes and make it harder to quit.

"We can't reduce tobacco use and associated disease and death without eliminating menthol as a flavor. That's really the next step," said Chrissie Juliano, executive director of the Big Cities Health Coalition, which represents city health departments across the country.

The Biden administration had seemed on board with restricting the sale of menthol cigarettes, with the Food and Drug Administration proposing the ban in April 2022. A final rule was supposed to be released in August. When a final rule was sent to the White House budget office this fall, advocates believed they were close to the finish line.

PHOTO: Menthol cigarettes sit on a table on April 28, 2022 in Los Angeles, California.
Menthol cigarettes sit on a table on April 28, 2022 in Los Angeles, California.
Mario Tama/Getty Images

But in private phone calls, civil rights groups including the ACLU; the National Organization of Black Law Enforcement Executives, or NOBLE; and Rev. Al Sharpton's National Action Network warned the White House against the plan, with some officials suggesting that a regulatory crackdown could harm President Joe Biden's reelection chances with Black voters.

A senior administration official, who spoke on condition of anonymity because of the sensitivities involved, confirmed that the delay was the result of those conversations.

"It is a signal to the community that lobbied on this that we heard you and we need some more time to look at this," the official told ABC News.

The White House declined to comment.

Now anti-tobacco groups say they worry the rule won't happen at all, especially in an election year. They point to the fact that several of the groups involved in discussions with the White House and others running ads against the ban are sponsored by tobacco companies.

Yolonda Richardson, president of the Campaign for Tobacco-Free Kids, said more than 45,000 Black people die from smoking each year – a figure the administration knows well.

“I don't know how Black Lives Matter if you're willing to put 45,000 lives at risk” by keeping menthol cigarettes on the market, she said.

NOBLE lists tobacco giant Altria among its sponsors. Another group, the National Association of Blacks in Criminal Justice, which ran ads against the proposed ban, is sponsored by Reynolds American.

NOBLE and NABCJ didn't immediately respond to a request for comment.

Tobacco-maker Reynolds American said it supports organizations that "contribute to the debate" on issues important to its consumers.

"Reynolds has been clear on where it stands on this topic - we strongly believe there are more effective ways to deliver tobacco harm reduction than banning products. Banning products often leads to unintended consequences such as the increase of illegal/unregulated products flooding the market," according to the company statement.

Altria did not immediately respond to requests for comment, but in a statement on menthol cigarettes in general said: "We believe prohibition does not work, and criminalizing menthol will lead to serious unintended consequences. We also believe the science and evidence does not support bans on menthol cigarettes and characterizing flavors in cigars."

Sharpton's National Action Network says it participated in phone calls with the White House because it believes the menthol ban would have unintended consequences. A spokesperson did not answer questions about whether tobacco companies sponsor the organization.

"National Action Network has taken the position that, unless there are real safeguards against criminal prosecution of Black and Brown communities, the proposed menthol ban will have unintended consequences," according to a statement shared with ABC News. "This position was taken after working with Gwen Carr, the mother of Eric Garner; attorney Ben Crump; and the ACLU. NAN is also not opposed to a ban on all cigarettes." (Eric Garner, a 43-year-old Black man, died in 2014 after being placed in a police chokehold while being arrested on Staten Island in a dispute over selling loose cigarettes.)

Juliano and Richardson said any suggestion that the rule could criminalize Black smokers doesn't make sense because the rule goes after manufacturing and distribution only.

"These regulations do not suggest in any way shape or form that individuals would bear the brunt of any enforcement," Juliano said.

Richardson said misinformation is a problem as much as the politics.

“I think it's very easy for the tobacco industry to stoke fears on an issue that clearly the Black and African American community feels very strongly about and it's very emotional issue for this community," she said.

ABC News' Sony Salzman contributed to this report.

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