On April 26, U.S. Secretary of Health and Human Services Xavier Becerra issued a scant 47-word statement on behalf of the Biden Administration announcing yet another delay to the release of the rule to ban the sale of mentholated tobacco products. There is simply no justification for delaying this obvious, life-saving action, again and again.

The Biden Administration’s withdrawal of the menthol rule comes fifteen years after the adoption of the Tobacco Control Act, which banned all flavors in cigarettes except menthol and tobacco and directed the FDA to study and address the problem of menthol cigarettes. Since then, the timeline of FDA inaction on menthol included relentless work by public health researchers, advocates, and lawyers to continue to build the evidence base and press the FDA to act by filing a citizen petition, submitting comments on public dockets, meeting with FDA staff, holding public meetings and conferences. After all of these activities failed to produce a final rule, public health and racial justice leaders filed suit against the FDA on Juneteenth 2020 to demand the federal government take this life-saving step. The FDA’s eventual response was to issue a proposed rule to ban the sale of mentholated cigarettes in April 2022 and deliver the final rule to the White House in 2023 for review and approval. And now, fifteen years later, the final rule has been put on hold indefinitely. Countless lives have been lost and families devastated because of the many unnecessary delays.

Not only does this decision by the Biden Administration run counter to its purported public health goals - most notably its Cancer Moonshot initiative which specifically mentions menthol cigarettes -  it also runs counter to the law. The analysis of the public health impact of a menthol ban is the only factor the FDA is legally allowed to consider as a part of the rulemaking process for such a policy. The copious and irrefutable scientific evidence, including from the FDA’s own Tobacco Product Scientific Advisory Committees, demonstrates that removing mentholated cigarettes from the market would save tens of thousands of lives - especially Black, Hispanic, and LGBTQ+ lives - each year, while reducing youth initiation and increasing cessation. In light of this evidence, it is unconscionable, and potentially illegal, for the administration to defer to Big Tobacco’s perverse and disingenuous arguments and align itself with the tobacco industry over public health by further delaying this final rule.

This fight is far from over, as evidenced by the immediate and vocal outcry from the public health community and the filing of a second lawsuit against the FDA by the African American Tobacco Control Leadership Council, Action on Smoking and Health, and the National Medical Association. The Administration’s unjust and inequitable decision also underscores the continued importance and central role that state and local governments need to play to protect the health of their citizens from the predatory tactics of the tobacco industry while we continue to wait for the federal government to stand up to the tobacco industry.

Mark Meaney, Director of Commercial Tobacco Control Programs
May 7, 2024