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Biden administration must decide soon on menthol cigarettes or risk proposed ban going up in smoke, advocates say

Drew Angerer/Getty Images/File

Health advocates and activists plan to intensify their push for a ban on menthol cigarettes this week, ratcheting up pressure on the White House ahead of what they say is a critical deadline.

Advocates say January 20 is a key day for the decision because the US Food and Drug Administration, the agency behind the proposed ban, has said it needs a year for full implementation. A decision this week would make a menthol ban effective by next year’s Inauguration Day. But if the White House does not at least decide internally this week to get the wheels of government moving to approve a ban, and if the FDA is unable to implement the rule in less than the year it has asked for, advocates worry that this proposal will never become a reality.

Menthol cigarettes, of all the issues, have emerged as a pivotal one for President Joe Biden, who is facing an election year with worries over diminished enthusiasm from Black voters.

Black smokers are disproportionately more likely to smoke menthol cigarettes, and some civil rights leaders with ties to the tobacco industry have raised concern with the White House that a ban would criminalize menthol cigarettes and lead to an increase in deadly police interactions. Meanwhile, the NAACP and the Congressional Black Caucus have endorsed the ban, along with dozens of public health experts, saying it would save hundreds of thousands of Black lives.

The FDA proposal would ban the manufacturing and sale of menthols but would not police smokers. The rule explicitly states, “This regulation does not include a prohibition on individual consumer possession or use, and FDA cannot and will not enforce against individual consumers for possession or use of menthol cigarettes. FDA’s enforcement will only address manufacturers, distributors, wholesalers, importers, and retailers.”

The divide among Black leaders has made the proposed ban a ripe political issue for the administration. It has delayed a decision on the FDA’s proposed menthol cigarette ban three times.

“Everybody knows that this deadline is there and needs to be taken seriously. The failure to meet this deadline is in essence potentially waving a little white flag on this rule because you have just significantly increased the chances that it’s not going to survive,” said James Goodwin, a senior policy analyst with the Center for Progressive Reform who studies federal regulatory policy.

Goodwin and health advocates pushing for the ban told CNN that if the White House does not at least make an internal decision this week and Biden does not win a second term, a new president could easily set the wheels in motion to repeal the rule without it ever taking effect. “It would be like the rule never existed,” Goodwin said

Dr. Sven-Eric Jordt, an associate professor of anesthesiology, pharmacology and cancer biology at Duke University who sits on the FDA’s Tobacco Products Scientific Advisory Committee, told CNN in an email Monday that this week is critical to the timing of implementation.

“I strongly hope that the administration leadership will give FDA the green light to finalize the menthol cigarette ban, and also the ban on flavored cigars. There are only 5 days left,” he said.

The White House declined to comment.

This week, health advocates describe their approach as “all gas, no brakes,” emphasizing their increased momentum to get the White House to say yes on a menthol cigarette ban. They’ve already done outreach to a large group of mayors who have been supportive of a menthol ban, asking the leaders, such as Los Angeles Mayor Karen Bass, to speak directly to both the president and vice president in support of the ban during the US Conference of Mayors happening in Washington this week.

The conference will include a meeting at the White House with the president on Friday. The previous day, health advocates and youth activists from across the country are scheduled to gather in front of the White House to hold a funeral for menthol, calling attention to the 45,000 Black people who die each year from tobacco-related illnesses in the United States.

The organizers say it will include a casket procession down Black Lives Matter Plaza, culminating in front of the White House with a full funeral service and rally at Lafayette Square Park.

In another move to put pressure on the White House, the nonprofit health advocacy group Campaign for Tobacco-Free Kids said it is rolling out a digital advertising campaign highlighting the importance of a menthol ban for achieving the goals of Biden’s Cancer Moonshot initiative.

“President Biden, you can’t conquer cancer without standing up to Big Tobacco,” one ad says, accompanying the image of a boot print on the moon. “Take one giant leap against cancer: Eliminate menthol cigarettes.”

If the menthol cigarette ban takes effect, experts say tobacco companies will probably sue, delaying the rule. Despite the legal challenges on the horizon, Goodwin says that missing the January 20 deadline opens new avenues for a future president to repeal the rule, regardless of what happens in the courts.

“Having the rule’s effective date before the inauguration puts it in a safe harbor. Missing that date, even by a day, leaves the rule still out at sea where it is then at the mercy of the vagaries of a future president hostile to public health regulation,” Goodwin said.

Despite the January 20 deadline that advocates see as the make-or-break moment for the proposed menthol ban, the Office of Management and Budget still lists its review of the rule as “pending,” with a decision not scheduled until March. The agency has more than 30 meetings on the issue set up January and February with industry, law enforcement groups, gas station and convenience store associations and public health groups. OMB did not provide comment for this report.

Health advocates argue that the science is clear: Banning menthol cigarettes would save up to 654,000 lives in the US within 40 years, including the lives of 255,000 members of the Black community, a 2022 study found.

Black people die at significantly higher rates than White people from smoking-related illnesses including stroke, heart disease and lung cancer; Black people make up 12% of the population in the US, but the community accounts for 41% of smoking-related premature deaths and 50% of the life-years lost associated with menthol tobacco product use between 1980 and 2018, one study found.

If menthols were banned, the gap between Black and White lung cancer deaths would close within five years, the Council on Foreign Relations study found. Health advocates add that a ban would also help prevent kids from picking up the habit.

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