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Biden Administration Indefinitely Postpones Menthol Ban

U.S. Health and Human Services Secretary Xavier Becerra: The public comment period "has yielded an immense amount of feedback."
Danielle Romano
The FDA logo and menthol ban

WASHINGTON, D.C. — The Biden Administration put another hold on deciding whether to issue a final rule that would ban menthol cigarettes.

In a statement issued on April 26, U.S. Health and Human Services Secretary Xavier Becerra said that the proposed ban "will take significantly more time."

"This rule has garnered historic attention, and the public comment period has yielded an immense amount of feedback, including from various elements of the civil rights and criminal justice movement," Becerra commented. "It's clear that there are still more conversations to have, and that will take significantly more time."

The ban was first delayed in December 2023, and plans to finalize the ban in March never materialized. In published remarks, administration officials stated that they were still committed to implementing a ban.

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[Read more: Convenience Channel Braces for a Slowdown in Cigarette Sales]

Menthol cigarettes account for approximately 34% of cigarette sales, according to NACS.

The delay, according to sources, is because the White House is concerned such a ban might alienate some Black voters, prompting the decision to potentially be pushed until after November's election. 

2022 study found that among Black adults who smoked, 80% of them smoked menthol cigarettes, reported The Wall Street Journal. 

Earlier this month, as a result of the White House missing another deadline to make a decision on a proposed federal menthol cigarette ban, the African American Tobacco Control Leadership Council, Action on Smoking and Health and the National Medical Association have filed a lawsuit against the U.S. Food and Drug Administration (FDA) in response to the inaction.

This is the second suit the groups have brought against the administration, after an initial filing in June 2020 which specifically sought to compel the FDA's determination on whether to add menthol to the list of prohibited characterizing flavors, as Convenience Store News previously reported.

[Read more: FDA Creates Database for Legally Marketed Tobacco Products]

The impending menthol ban has also received opposition from NACS, which advocates on behalf of the convenience and fuel retailing industry, as well as National Association of Tobacco Outlets (NATO). 

According to NACS, prohibition does not rid these products from society but instead pushes current users to the illicit market, creating an issue for society as a whole and undermining the compliance efforts and investments made by responsible tobacco retailers. In addition, prohibition leads to an influx of these products on the illicit market and illicit sellers do not comply with laws limiting sales to minors.

"We appreciate the willingness of the Department of Health and Human Services to give more consideration to its policies relating to menthol cigarettes," said Doug Kantor, general counsel at NACS. "Real world data and results have shown that prohibition of menthol cigarettes does not reduce smoking or advance public health. Instead, like the experience with prohibition of other entrenched products, it simply leads to more illicit sales. We hope the weight of evidence showing the ineffectiveness of what was originally proposed leads the Department to change course entirely."

Additionally, as part of the comment process, NATO met with representatives in December from the Office of Management and Budget, the Executive Office of the President, the FDA and the Department of Health and Human Services to advocate that the final rulings not be published.

In its meeting with federal officials, NATO argued publication of the rulings would: 

  • Have a substantial negative economic impact on reputable, licensed and regulated retail businesses;
  • Negatively impact government revenues and the public programs which they fund; and
  • Result in significant unintended consequences, such as the supply of these products shifting from licensed and regulated retailers to an already flourishing illicit market.

It also argued that licensed and regulated retailers, like NATO's members, sell tobacco products responsibly and are in compliance with all laws and regulations, which already prevents youth access to menthol cigarettes and flavored cigars.

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