Here’s a word of advice to the Food and Drug Administration (FDA) regulators deciding this week whether or not to ban menthol cigarettes: Cool it. If the FDA sows this wind, I fear we will reap the whirlwind.
It was only last year that the agency prohibited the sale of all other flavored cigarettes, but would outlawing menthol be a good idea?
The FDA’s power to ban it goes back to the 2009 “Family Smoking Prevention and Tobacco Control Act” — the law giving the Food and Drug Administration (FDA) authority to regulate tobacco. That bill contained a provision barring all flavorings except menthol.
At first glance, the decision to ban other flavorings may seem curious. After all, the only real player in the flavored cigarette market was, and is, menthol, which is smoked by about 30 percent of our nation’s 45 million adult smokers — and perhaps three-quarters of African-American smokers. The other flavored cigarettes — such as cherry, banana, and chocolate — are smoked by hardly anyone.
But the law finally giving the FDA jurisdiction over tobacco products was cobbled together over the course of some years. And, while the negotiators were such classic Washington figures as Sen. Ted Kennedy (D-Mass.), Rep. Henry Waxman (D-Calif.), and representatives of public health groups led by the Campaign for Tobacco-Free Kids’ Matt Myers, also involved were executives of Altria, America’s largest cigarette company (formerly Philip Morris). How Altria got a say in the behind-the-scenes decisions about regulating cigarettes is a tale for another day, but here’s the short version: without its support, there would have been no bill at all.
So, if Altria was the one who wanted menthol spared, does it then follow that we should outlaw it? Generally, what’s good for Big Tobacco is bad for everyone else. But we at ACSH decided to investigate the question by commissioning a study to evaluate the actual health effects of menthol in cigarettes. Our peer-reviewed position paper was released earlier this year and was communicated to the responsible committee of the Center for Tobacco Products (CTP), the division of the FDA established by the new law.
The results surprised us: extensive review of the relevant literature documented the absence of adverse health effects attributable to menthol in cigarettes. As compared to non-menthol cigarettes, we found no increased risk of cancer, heart disease, lung disease, or any of the myriad other debilitating or lethal effects of smoking.
Some members of the public health community, including some members of the committee charged with advising the FDA on menthol’s fate, have asserted that other “softer” (less reliably measured) factors call for a ban, such as lower quit rates and higher youth preference for menthols. Another concern is the higher rate of lung cancer among black smokers. While this discrepancy is real, the higher rate has not been found to be causally related to menthol-flavoring in cigarettes.
Why not just ban menthol anyway, given the concerns swirling about it? Who cares what the medical facts say about menthol — wouldn’t a ban just upset the cigarette-makers who addict young people to menthols, cutting into their profits? Unfortunately, that is not the major downside of a menthol ban. Given the fact that smokers who prefer menthol rarely change to a non-menthol, the more likely scenario post-ban is the development of a massive, widespread black market in contraband menthols, thanks to criminal smugglers supplying plentiful smokes to anyone who’ll pay the premium for them — no questions asked, no I.D. cards checked, no taxes paid. These specters are far from hypothetical. Fully one-half of all cigarettes purchased on the Canadian side of the Ontario-New York border are “undocumented.”
A member of the CTP menthol committee asked me, when I presented these facts, if I had any data to support my contention that if menthol were officially banned, unofficial mentholated cigarettes would quickly fill the vacuum. I could only respond by noting that common sense (and some sense of history) dictates that when a $20 billion-plus market is abruptly criminalized, the 13 million menthol smokers who have generated that market will not just disappear.
Clearly, one of three options would hold sway: either menthol smokers will switch to non-menthols; they will find contraband menthol cigarettes (or make their own using easily-obtained menthol flavoring); or they will quit smoking. It is ludicrous to imagine that a significant fraction of menthol smokers will just quit smoking because of the absence of legitimate menthols. Moreover, since menthol smokers actually tend to smoke fewer cigarettes per day than non-menthol smokers, the net result of a menthol ban would very likely be a net increase in cigarette consumption. Some smokers will get the false impression from a menthol ban that non-menthol smokes are somehow safer. And worst of all, youth smoking may well increase as the contraband pushers solicit anyone who can pay.
Because such a ban would predominantly affect black smokers, law enforcement directed against sellers of illegal cigarettes would likely face racial issues — the last thing we need added to the many other complex concerns related to cigarettes. If mentholated cigarettes were in fact more dangerous or toxic than other cigarettes, banning menthol in hopes of getting menthol smokers to quit — or at least to switch to non-menthols — would perhaps be worth the risk of generating a dangerous black market.
But they are not more dangerous. I call upon the CTP and its menthol committee to take a step back and look at the broader picture: would a ban on menthol reduce teen smoking or the total consumption of cigarettes in America? And if not — as I believe the facts indicate — then the risk of unintended consequences of such a ban is too great to take.
Gilbert Ross, MD, is the Medical Director of the American Council on Science and Health, a public health, consumer-education consortium of over 380 scientists and physicians.