Courts would likely uphold FDA’s menthol cigarette ban

Courts will likely uphold the US Food and Drug Administration’s proposed ban on menthol combustible tobacco products, though it may be a lengthy legal process, according to a new study.

The 2009 Family Smoking Prevention and Tobacco Control Act provided the FDA with broad authority to regulate the manufacturing, marketing, and distribution of tobacco products, including banning flavored cigarettes, to protect public health.

However, the act didn’t ban menthol cigarettes, which adolescents, women, LGBT populations, and racial/ethnic minority groups, particularly African Americans, disproportionately use.

Researchers anticipated arguments the tobacco industry is likely to use in a lawsuit challenging the FDA’s authority to ban menthol cigarettes, weighed the strength of the scientific evidence justifying a menthol ban, and considered the potential for illicit trade to undermine the effectiveness of a menthol ban.

After considering those factors, researchers conclude that the FDA rule banning menthol cigarettes is likely to survive a lawsuit.

The FDA has sought public comments on menthol two previous times this decade without following through. In late 2018, then FDA Commissioner Scott Gottlieb showed commitment to a menthol ban that the FDA had not displayed previously. There is no indication that his resignation in March 2019 will alter the FDA’s course or priorities.

“All cigarettes are deadly. Menthol cigarettes are particularly nefarious because the tobacco industry designed them as ‘starter products’ that mask the harshness of smoking, leading to more smokers overall,” says lead author Kevin Schroth, a member of the Rutgers Center for Tobacco Studies and a faculty member at the Rutgers School of Public Health.

“Additionally, menthol cigarettes are even harder to quit than nonmenthol cigarettes. This paper shows that right now the FDA has the scientific evidence and legal power to pull these deadly products from the market, saving thousands of lives, especially in communities that have been targeted historically by menthol marketing.”

Even if the FDA proceeds expeditiously, the rule-making process may take at least two years without including potential litigation delays. In the meanwhile, local jurisdictions like San Francisco have banned the sale of menthol and other flavored tobacco products.

The research appears in Public Health Reports.

Source: Rutgers University