This story has been updated.
The Food and Drug Administration announced Thursday rules for a proposed nationwide ban on the sale of menthol cigarettes, a move that has significant implications for Black communities, which disproportionately smoke menthol products.
Public health experts lauded the FDA’s announcement, saying it will significantly reduce tobacco-related health diseases and death.
“The proposed rules would help prevent children from becoming the next generation of smokers and help adult smokers quit,” said Xavier Becerra, Health and Human Services secretary, in a news release. “The proposed rules represent an important step to advance health equity by significantly reducing tobacco-related health disparities.”
But racial justice activists raised concerns that a ban would “unleash a Category 5 unintended consequences storm in our community.” In a letter to the Biden administration, Mothers of the Movement questioned the implications of banning menthol cigarettes — the preference of more than 80% of Black smokers — while allowing other tobacco products to remain legal.
“When you ban a product sold mostly in black communities … but do not have the same ban in other communities, you must consider the fairness of such an approach,” they wrote last week, noting that a ban could exacerbate the unjust results of overpolicing in Black neighborhoods. Among the signatories on the letter was Gwen Carr, whose son Eric Garner was killed in 2014 during an encounter with New York City police who accused him of illegally selling loose cigarettes.
A ban will “open the floodgates for smuggling and for people living outside of our communities to offer members of our communities another forbidden and valuable item on a platter of illegal substances already plaguing our neighborhoods,” they wrote. “The street value of loosies is already high. Banning menthol cigarettes will only increase the value and attractiveness.”
The popularity of menthol cigarettes with Black smokers results from decades of targeted campaigning by tobacco companies. The FDA has said that menthols are easier to smoke and harder to quit, and while Black Americans smoke fewer cigarettes and tend to start at a later age than white Americans, they’re more likely to die from smoking-related illnesses such as cancer, heart disease, and stroke, according to the U.S. Centers for Disease Control and Prevention. In the U.S., Black men have the highest rates of lung cancer.
The FDA will invite public comment on the proposed ban from May 4 through July 5 and then issue a final decision on the rule.
More from Capital B: A Nationwide Ban on Menthol Cigarettes Could Be Coming, and It’s Dividing Racial Justice Advocates
The newly proposed regulations — which studies show could prevent 92,000 to 238,000 smoking-attributable deaths among Black Americans over 40 years, according to the FDA — have widespread support among public health experts.
If finalized, the ban “will have a greater impact on public health than any other action the agency has taken on tobacco and will have the greatest impact on reducing health disparities in the African American community,” said Matt Myers, president of the Campaign for Tobacco-Free Kids.
The NAACP and other advocates pointed to the tobacco industry’s marketing campaigns toward Black Americans as a cause for the current disparate health outcomes. Tobacco companies offered grants to HBCUs, sponsored hip-hop and jazz music festivals, and distributed free cigarette samples in Black neighborhoods across the country.
“FDA’s actions today send a clear message that Big Tobacco’s strategy to profit off addicting Black Americans will no longer be tolerated,” said Lisa Lacasse, president of the American Cancer Society Cancer Action Network. “Currently, lung cancer deaths rates in Black males are 15% higher than those of white males in the U.S. If we’re going to address these very real health disparities, we must take strong action to end the industry’s targeting of Black communities.”
Racial justice advocates have divided over the possible unintended consequences of banning menthol tobacco, such as criminalization of Black communities for illicit cigarette sales. Some tobacco companies also have raised concerns about potential for the rise of an underground market for menthol products.
“We believe harm reduction, not prohibition, is the better path forward,” wrote Altria, a tobacco company, in a statement after the FDA’s announcement. “Taking these products out of the legal marketplace will push them into unregulated, criminal markets that don’t follow any regulations and ignore minimum age laws.”
The FDA has said its rule would not be enforced “against individual consumers for possession or use of menthol cigarettes or flavored cigars.”
“If these proposed rules are finalized and implemented, FDA enforcement will only address manufacturers, distributors, wholesalers, importers and retailers who manufacture, distribute, or sell such products within the U.S. that are not in compliance with applicable requirements,” the agency wrote in a news release. “These proposed regulations do not include a prohibition on individual consumer possession or use.”
But racial justice advocates have been dubious, noting the history of policies like stop and frisk and the overpolicing of young, Black men for minor infractions.
“While we have been told that black smokers will not be criminalized for possessing menthol cigarettes, that does not match our experience with other cigarette policies,” Mothers of the Movement wrote in the April 22 letter.
A recent study by Vanderbilt University casts doubt on the potential impact of a menthol ban on public health and smoking rates. The research found that menthol and non-menthol smokers had similar rates of quitting, with no statistically significant difference between white and African American participants.
“Overall, the national data suggest that menthol smokers actually do have lower lung cancer risk than non-menthol smokers,” said Dr. William Blot, a cancer epidemiologist and researcher on the study. “Most menthol smokers don’t quit. They switch,” he said, noting data from Canada, which has already implemented a ban on menthol products.
If menthol smokers do not quit but switch products following a ban, Blot said, “could they then be switching to a product with an elevated risk? Could the ban actually lead to an elevated risk of cancer?”
In response to the study, public health experts are also urging the Biden administration and health organizations across the country to invest in cessation programs.
“If the United States does impose its ban, then we would recommend that it be accompanied by an extensive program providing smokers a means to quit,” Blot said.
With the FDA rule still being finalized, some advocates believe more public awareness is needed around menthol products’ effects, particularly on Black communities.
“Just because the rule is published, that doesn’t mean the game is over,” said Delmonte Jefferson, executive director of the Center for Black Health & Equity. “The fight still is not over.”