The U.S. Food and Drug Administration is expected to introduce a nationwide ban on the sale of menthol cigarettes and flavored cigars this spring, a move intended to reduce racial health disparities in tobacco-related diseases and death. But the proposal has divided racial justice advocates who debate whether the health benefits would come at the risk of further criminalizing Black communities.

The FDA gave itself until April to draw up rules that limit the sale of menthol cigarettes, which are easier to smoke and harder to quit than unflavored products. The tobacco industry’s marketing of menthols included a targeted campaign toward Black Americans for decades. Today, 85% of Black smokers opt for menthol products, the highest rate of any reported racial group.

Overall, Black Americans smoke fewer cigarettes and tend to start at a later age than white Americans, but they’re more likely to die from smoking-related illnesses, according to the Centers for Disease Control and Prevention. Tobacco use is a significant contributor to heart disease, cancer and stroke — the three leading causes of death for Black Americans.

“The public health gain is enormous,” said Matt Myers, president of the Campaign for Tobacco-Free Kids, of a menthol ban. “There’s no single action that the federal government can take that will more rapidly and more effectively reduce the health disparities that exist in the United States today.”

Banning menthol products has widespread support from public health experts as well as some civil rights leaders and a bipartisan group of state attorneys general. When the FDA announced last year that it plans to issue a ban, the NAACP backed the idea, saying “The tobacco industry is on a narrow quest for profit, and they have been killing us along the way. … It’s about time we prioritize the health and well-being of African Americans.”

But banning menthol products also has raised concerns, particularly among criminal justice reform and drug policy groups. The organizations advocate for using awareness campaigns instead of criminalization, pointing to the dramatic decline in overall cigarette use since the 1970s that was achieved largely by educating the public on the harms of tobacco. 

Some Black congresspeople have objected to a federal ban on grounds that making menthol cigarettes illegal will give police more opportunities to detain Black Americans, who are already overly burdened by the legal system. The ACLU pointed to the killing of Eric Garner, a Black man who was killed by New York police in 2014 after he was stopped for selling unpackaged cigarettes on the street.

“At this pivotal moment, as the public demands an end to police violence erupting from minor offenses, we call on the Biden administration to rethink its approach and employ harm reduction strategies over a ban that will lead to criminalization,” Aamra Ahmad, senior legislative counsel with the American Civil Liberties Union, wrote last April. “It is now clear that policies that amount to prohibition have serious racial justice implications.” 

Supporters of the menthol ban note that the ACLU has accepted money from the tobacco industry.

Garner’s mother, Gwen Carr, also has spoken out against menthol bans, saying they give “police officers another excuse to harass and harm any Black man, woman or child they choose.”

A Wave of Menthol Bans

A federal ban has been in consideration for a while. In 2009, the Family Smoking Prevention and Tobacco Control Act banned flavors in cigarettes — except menthol. Then, in 2011, the FDA’s Tobacco Products Scientific Advisory Committee, which evaluates the safety of tobacco products, released a report that said banning menthol would have significant public health benefits, and an internal report in 2013 recommended the same. 

In 2020, organizations including the American Medical Association and the National Medical Association joined a lawsuit against the FDA stating that the agency had abdicated its public health duties by failing to ban menthol. Months later, the agency announced it would draft a proposed ban, and in January the FDA said it was on track to advance two proposals: One bans menthol in cigarettes and another prohibits most flavored cigars. 

With the federal ban pending, local governments around the country have been imposing their own restrictions on menthol cigarettes. Cities in California, Colorado, Illinois, Maine, Minnesota and New York have limited their sale, as well as Washington County in Oregon and the District of Columbia. 

California Gov. Gavin Newsom has signed a bill regarding a similar ban but the state has yet to implement it due to tobacco industry pushback. A referendum this fall will decide its fate.

In 2019, Massachusetts became the first state to restrict the sale of all flavored tobacco, including menthol, amid objections from store owners. Following the ban, retailers complained of significant drops in sales revenues and a rise in illicit street sales, according to local news reports. Some state legislators called for a repeal of the ban, citing the loss of tax revenue to neighboring states that continued to allow menthol sales.

With a federal ban, advocates say the likelihood of illicit markets developing will dramatically reduce. Canada banned menthol cigarettes in 2017. And Phillip Gardiner, a public health researcher who co-chairs the African American Tobacco Control Leadership Council, disputed the concerns about criminalization, saying enforcement of menthol bans largely targets wholesalers and retailers, not individual possession.

Even if the FDA pursues the ban this spring, any official implementation will likely be delayed by tobacco company resistance, experts say, including lawsuits. 

“The tobacco industry sees this as an existential threat,” said Thomas Carr, director of national policy at the American Lung Association. 

An Intentional Target

An estimated 34 million adults – about 10% of the population – smoke cigarettes nationwide, and more than half smoke menthol products. The number of cigarettes sold in the United States increased in 2020 for the first time in two decades, according to the Federal Trade Commission.

The disproportionate use of menthol by Black Americans is “no coincidence,” said Lincoln Mondy, whose film Black Lungs, Black Lives explored the tobacco industry’s involvement in Black communities. The film, funded by the tobacco-free advocacy group Truth Initiative, showed carefully plotted advertising campaigns that drove up menthol cigarette use in those areas.

”You can’t talk about this country’s history, this country’s relationship with race, with class, without talking about tobacco,” Mondy said.

Tobacco companies offered grants to HBCUs, sponsored hip-hop and jazz music festivals, and supported civil rights institutions including the NAACP.  In the 1980s, industry-sponsored vans distributed free cigarette samples in the streets of Houston’s Black neighborhoods. The program would later expand to 50 cities. 

“A total of 1.9M samples will be distributed to targeted smokers in 1983,” industry officials wrote in a Kool Market Development Program document. “Sample distribution will be targeted to: housing projects, clubs, community organizations and events where Kool’s Black young adult target congregate.”

And, according to a 1992 report by The Times of London, when asked why tobacco company leaders didn’t smoke, an R.J. Reynolds executive replied, “We don’t smoke that s—t. We just sell it. We reserve the right to smoke for the young, the poor, the Black and stupid.”

R. J. Reynolds did not respond to requests for comment for this story.

Often, billboard and magazine ads in Ebony and Jet featured Black models or celebrities selling the image of sophistication, luxury and success. The percentage of menthol smokers who were Black skyrocketed from 5% in the 1950s to over 80% in the 2000s.

More recently, across the United States, the largest tobacco companies spent more than $8 billion on cigarette and smokeless tobacco marketing — and much of it is concentrated in Black areas. A study published in 2007 showed there are about three times as many tobacco ads per resident in Black neighborhoods compared to white neighborhoods.

“They were pushed down our throats,” said Gardiner of the African American Tobacco Control Leadership Council, which was among the groups that sued the FDA in 2020.  “It’s a set up.”

Similarly, the tobacco industry also sponsored Pride festivals and gay nights at bars, which has increased menthol use within the LGBTQ community.

For folks who live at the intersection of multiple marginalized identities, like Black queer people, the likelihood of smoking menthol increases.

The Science Behind Menthol

Menthol masks unpleasant tobacco flavors, making smoking less harsh, especially for first-time users, doctors say. It gives smokers the illusion that it’s not as toxic as other tobacco when, in reality, the consequences are just as severe — if not worse. 

“It increases the likelihood of people becoming addicted and the degree of addiction,” said Dr. Jamie Rutland, a pulmonary and critical care physician. 

Menthol cigarette smokers remain at risk for emphysema, chronic bronchitis, asthma and lung cancer, which Black men are already at high risk for. And the highly addictive nature of menthol is also intentional, experts say. 

“Menthol is the ultimate candy flavor,” said Gardiner, a public health researcher. It “helps the poison go down easier.” 

Heightened stress plays a role in addiction, too, which can multiply the susceptibility of people in marginalized communities.

“A lot of people who do use these products use them as a coping mechanism,” said Gabriel Glissmeyer, a project specialist at the National LGBT Cancer Network. “If you have to spend $9 on a pack of cigarettes versus spending $200 out of pocket for a 45-minute therapy appointment, it’s a pretty easy choice for most people.”

Advocates worry that the tobacco industry will have an advantage during the public comment period that would follow the release of the FDA’s proposed rules before the ban would go into effect.

Anyone can give remarks during the comment period, including tobacco-industry officials, researchers, advocacy groups, and the general public. But in order to hold weight in the decision-making process, those comments must have research to support their statements. 

The process advantages those with money at stake, said Mignonne Guy, a Virginia Commonwealth University professor who was recently appointed to the FDA’s Tobacco Products Scientific Advisory Committee.

“It’s completely inequitable,” said Guy.

She hopes the FDA and other policy administrations will consider a more equitable approach to hearing public comments, more regulations around marketing, bans of other addictive sweeteners in tobacco products, and an increased focus on creating accessible and effective cessation programs.

As pressure to ban menthol mounts, the tobacco industry is shifting its focus to new products like e-cigarettes, said Mondy, the filmmaker. They are well-suited to dodge public health measures and keep revenue flowing, which is the focus of his second film, he said.

“Big Tobacco isn’t going anywhere,” he said. “They’re just getting bigger.”