Big Tobacco Won’t Cave Easily to the Menthol Ban

On November 15, the US Food and Drug Administration (FDA) announced plans to ban menthol cigarettes in a move that agency officials described as part of an aggressive new campaign against certain tobacco products. The plans have been welcomed by campaign groups who see mint-flavored smokes as a key means of hooking young people, particularly people of color. But given that certain manufacturers, like Altria Group, make as much as 20 percent of their profits from menthol cigarettes, the agency can expect a fierce battle. The industry will fight hard – and dirty – in its attempts to wriggle free of regulation.

The menthol ban is just one of a package of proposals designed to protect teens from tobacco. FDA Commissioner Scott Gottlieb – a cancer survivor – also plans to curb the sale of flavored e-cigarettes and flavored cigars. Yet, there’s no doubt which is the most significant of the proposals; the FDA has been planning a crackdown on menthol for years and has already secured a ban on several other flavors, thanks to the Family Smoking Prevention and Tobacco Control Act of 2009, which expanded the agency’s ability to regulate the manufacturing, distribution and marketing of tobacco products. If the agency manages to outlaw menthol smokes as well, it will have struck a decisive blow against what Gottlieb describes as “one of the most common and pernicious routes” toward heavy smoking.

Echoing a common view among health bodies, the FDA stated menthol cigarettes are harder to quit than non-menthols, pose greater health risks and carry particular danger for young people because they mask the true taste of tobacco. This is backed up by research that shows that around 50 percent of teen smokers smoke menthol cigarettes, rising to 70 percent in the African American community. Indeed, groups like the Campaign for Tobacco-Free Kids say the move is long overdue: “Menthol cigarettes are the single most important pathway to get kids to start smoking in the United States,” said the organization’s president, Matthew Myers.

Unfortunately, analysts say that of all Gottlieb’s measures, the battle against menthol will be the toughest to win. A regulatory ban is expected to take at least a year to finalize and a further year to enact, and the FDA can’t implement it unilaterally; any prohibition would have to be signed off by the federal government, which means external agencies will be invited into the process. At some stage, the tobacco industry will have its say, and the industry’s public relations staff (not to mention litigation teams) have already begun the counteroffensive, suggesting the ban would create a black market and is “not supported by the science or evidence.”

Indeed, the army of lawyers and lobbyists at Big Tobacco’s disposal provide a fearsome obstacle. The very fact that menthol cigarettes haven’t been banned already is testament to Big Tobacco’s lobbying, which ensured the 2009 Control Act excluded minty smokes and prevented the FDA from banning existing tobacco products unilaterally. When the agency tried to reclassify e-cigarettes as medical devices to get around this roadblock, the tobacco lawyers fought and beat them again. Then there’s the shakiness of the science; lawyers are sure to zero in on the claim that menthol makes cigarettes more addictive, which manufacturers have already challenged in front of the FDA.

The E-Cigarette Bait-and-Switch

Make no mistake; this is a battle regulators must win. Although the e-cigarette market is booming among high school students, it’s got nothing on menthol, which accounts for around 35 percent of total US cigarette sales. When the FDA announced its offensive, shares in British American Tobacco (BAT) and Imperial Brands lost £8.6 billion (more than $10.9 billion in US dollars), and this comes on the back of a nightmare period: BAT has already lost 40 percent of its share value over the past year. Facing tightening regulations around the world, and having been forced to admit that cigarettes are harmful and addictive, the manufacturers simply can’t afford to lose their gateway to the highly impressionable youth market.

Time and again, the industry has shown it will stop at nothing to protect its access to new smokers – which is perhaps understandable, given its product kills two of every three long-term customers. Whether it be manipulating prices to mitigate the effect of tax hikes, or advertising near schools in developing countries, Big Tobacco has stooped to ever-greater lows to replenish its market. Even when throttled by regulations, manufacturers find a way out. In the United Kingdom, for example, Philip Morris has launched a “Hold My Light” campaign that says quitting cigarettes “is the best decision a smoker can make” – but then tells readers to switch to e-cigarettes instead.

Indeed, touting the alleged benefits of e-cigarettes is a savvy bait-and-switch from an industry that already sees the writing on the wall. It’s a tactic that was on full display in October, when delegates from 137 countries convened in Geneva to update the World Health Organization’s (WHO) global tobacco treaty, formally known as the Framework Convention on Tobacco Control. Since the treaty entered into force in 2005, it has played a major role in curbing tobacco use around the world, particularly in demand-reduction measures. According to a 2018 assessment, it is estimated that almost 22 million future premature smoking-attributable deaths were averted thanks to “strong implementation of demand-reduction measures” taken by countries between 2007 and 2014. Given this impact, Big Tobacco was unlikely to let such an occasion pass without a counteroffensive. According to The New York Times, Japan Tobacco International was among the funders of a swanky party, called the “Nicotine Is Not Your Enemy Soirée,” which was held just down the road from the Convention’s eighth Conference of the Parties. Corporate staff were banned by the WHO from attending official events, but Philip Morris hosted a “PMI Science Engagement Hub” to try to explain the company’s new focus on supposedly “harm-reduction” devices – that is to say, e-cigarettes. Japan Tobacco International was among the funders of a swanky party, called the “Nicotine Is Not Your Enemy Soirée,” which was held just down the road from the Convention’s eighth Conference of the Parties. Banned by the WHO from having its staff attend official events, Philip Morris also hosted a “PMI Science Engagement Hub” to try to explain the company’s new focus on supposedly “harm-reduction” devices – that is to say, e-cigarettes.

Clearly, from defending its “right” to sell menthols to staking its claim in the relatively unregulated territory of e-cigarettes, the industry will use every tactic at its disposal to try to guard its market share. But this doesn’t mean that the FDA and other regulators should back down. For the health of the general public, these are battles that must be fought with just as much mettle as the industry has.