FDA’s proposed menthol ban won’t work

Today, the Food and Drug Administration (FDA) announced a rule proposing a federal ban on Menthol cigarettes. As reported by the Wall Street Journal,

“The ban would prohibit the sale of menthol cigarettes and all flavored cigars. It wouldn’t affect menthol e-cigarettes.”

The proposed menthol ban wouldn’t take effect for at least two years. The FDA will invite public comments on the proposed rules; the agency must then review them all. It could publish final rules as early as 2023, and the ban could be set to take effect in 2024. At least one tobacco company has indicated that it might then sue, which could further delay the ban.

The plan, which has been in the works for more than two decades, is the biggest move the federal government has made to curb cigarette sales since the FDA gained regulatory control over the tobacco industry in 2009.

Reportedly, this move is part of an effort to eradicate health disparities that arise from smoking.

U.S. health officials say a menthol ban would reduce youth initiation, increase the success rate for smokers trying to quit, and address health disparities across racial groups.

In the U.S., 81% of Black smokers and 51% of Hispanic smokers used menthols in 2020, compared with 30% of white smokers, according to the National Survey on Drug Use and Health.

Smoking is a major contributor to heart disease, cancer and strokes—the three leading causes of death among African-Americans, according to the Centers for Disease Control and Prevention. And Black people in the U.S. die at a higher rate than other groups from smoking-related cancers, according to CDC research.

Bans are not effective

American Experiment published a report in early 2021 with evidence suggesting that efforts looking to curb tobacco use through tax hikes or bans usually do not work. These efforts may end up expanding the illegal market, which would put a strain on law enforcement. Moreover, given that a larger percentage of menthol users happen to be people of color, it would contribute to an increase in police interactions with those groups.

Tobacco use has been declining in recent years, especially among the youth. And one of the main reasons for that trend is education on the harmful effects of tobacco, not tax hikes or tobacco bans. Harm reduction products like e-cigarettes have also helped some individuals quit smoking or move to less harmful substances. While tobacco use went up in 2020, COVID-19-related restrictions were likely a contributing factor. So we should not expect that trend to be long-term.

In a lot of states where menthol has been banned — like Massachusetts — there has not been a reduction in menthol usage. Consumers merely bought from other neighboring states. And this shift in point of sale ended up reducing tax revenues for Massachusetts by over $100 million.

In Europe — the only other place with a region-wide ban on menthol cigarettes — the results are no different. According to the Tax Foundation,

Approximately 90 percent of cigarette consumers continue to consume but either engage in cross-border trade, switch to other flavored tobacco products, or start smoking non-flavored cigarettes. In Europe, where the menthol consumer group was much smaller, about 8 percent of menthol consumers reported quitting after the ban.

Moreover, compared to Europe, the U.S. has a bigger market for menthol, which would make an illicit market more profitable. So it is highly likely that the U.S. would have a bigger black market compared to Europe.

No evidence supports the menthol ban

To say the least, the evidence does not support the idea that banning menthol will make people stop using it. Banning menthol, however, will likely create a black market, reduce tax revenues for states, and criminalize menthol users who mostly happen to be people of color.