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White House Delays a Decision on Banning Menthol Cigarettes

The Biden administration delayed a decision on Wednesday about whether it would ban menthol cigarettes amid intense lobbying from tobacco companies, convenience stores and industry-backed groups that contend that billions of dollars in sales and jobs will be lost.

The proposal has also generated concerns that Black smokers will become the targets of aggressive police tactics, although some Black leaders, top lawmakers and government officials dispute that and say that tobacco companies are financing and fueling those fears.

The plan to eliminate menthol cigarettes has been years in the making. The Food and Drug Administration formally proposed an official rule last year, aimed at reducing health disparities, citing statistics that an estimated 85 percent of Black smokers prefer menthol brands. Black men especially face outsize health risks, including high rates of smoking-related lung cancer and death.

In recent months, dozens of groups have had appointments with administration officials to discuss the proposal. Tobacco companies and convenience store groups fighting the ban have aligned with the National Action Network, founded by the Rev. Al Sharpton, to advance the argument about the potential for racial targeting by the police. The group attended a large meeting with tobacco lobbyists and top administration officials on Nov. 20.

Many other Black organizations, including a majority of the Congressional Black Caucus, have dismissed the policing argument, calling it a cynical attempt to exploit trauma and distract from the harm of cigarettes.

“What we’re seeing now,” said Patrice Willoughby, vice president of policy and legislative affairs at the N.A.A.C.P., “is the reaction of a very well-organized industry that has been peddling death to the Black community.”

The F.D.A. has said it would like to see the proposal finalized this year, and Michael Felberbaum, an agency spokesman, said on Wednesday that it remained committed to issuing the rule “as expeditiously as possible.” The White House timetable for a decision on the ban had been shifting as months passed, against the backdrop of President Biden’s tough re-election bid next year.

The White House quietly made the delay public on Wednesday when it published a longer timeline in a regulatory publication, suggesting the proposal could be final by March. In recent weeks, public health groups have increasingly expressed concerns about the delays, urging administration officials to act quickly. The Washington Post earlier reported that the Biden administration would postpone any action on the proposal until the spring.

Senator Richard J. Durbin, the Democratic majority whip from Illinois, addressed the rumors of political motivations for the delay on the Senate floor on Wednesday, saying concerns that Black people would vote against the president in the next election because of the ban were “greatly exaggerated.”

“And I want to make it clear,” he said, “they’re peddling stories — Big Tobacco is — that we’re going to go out and arrest African Americans if they use menthol cigarettes. But that’s not the case at all.”

The F.D.A. has said that the ban will be enforced at the manufacturers’ level, and not against individuals.

The politics of banning menthol cigarettes are delicate for Mr. Biden. He cannot afford to appear as though he is condescending to Black voters, who have long been a key Democratic constituency. Recent polling shows that Black voters are increasingly disconnected from the Democratic Party, and even some of Mr. Biden’s allies have expressed concerns that a lack of enthusiasm among African Americans will keep them from the polls.

But at the same time, Mr. Biden campaigned on a promise to “follow the science,” and if his administration ignores the F.D.A.’s advice, he risks appearing as though he is bowing to political pressure.

The largest U.S. tobacco companies have considerable financial stakes in the menthol cigarette market, which the Federal Trade Commission estimates is a little more than one-third of all U.S. cigarette sales. Menthol cigarette sales for Reynolds American, which makes the top-selling Newport brand, total about $7 billion a year, research by Goldman Sachs shows.

Reynolds has vowed to fight the ban all the way to the Supreme Court, a battle that could postpone implementation of the final prohibition rule for years.

Both Altria, which makes menthol Marlboros, and Reynolds have attempted to soften their public image in recent years with pledges of a smoke-free future, marketing e-cigarettes like NJOY and the popular Vuse products. Yet cigarettes still make up three-quarters of the $76 billion U.S. tobacco market, with alternatives like vapes trailing far behind, according to Goldman Sachs estimates.

Convenience store, gas station and wholesaler groups have stacked the White House meeting calendar, too, predicting a loss of $34 billion in sales from menthol cigarettes and snacks and drinks purchased by customers, and from flavored cigars that would be banned under a companion proposal. The menthol ban would not cover the sale of menthol e-cigarettes.

Mr. Biden’s administration has called the effort a “critical piece” of his Cancer Moonshot initiative, noting that about 30 percent of all cancer deaths are caused by smoking. The F.D.A. has estimated that the menthol ban could reduce smoking by 15 percent in 40 years. Studies project that as many as 650,000 smoking-related deaths could be avoided.

The agency proposed the ban more than a year ago and forwarded it to the White House in October. Public health groups have been at the edge of their seats watching the White House calendar fill with meetings, mostly from opponents of the ban.

“Each day we wait is another day for Big Tobacco to hook new users and target communities with menthol cigarettes and flavored cigars,” Nancy Brown, chief executive of the American Heart Association, said in a statement. “By prohibiting the sale of menthol cigarettes and flavored cigars, the administration would make historic progress in saving lives from tobacco use.”

About 18.5 million smokers choose a menthol brand. Researchers say the cooling sensation of the menthol flavor makes it easier to start smoking and harder to quit. Public opinion polls have shown that about 60 percent of Americans favor banning menthol cigarettes.

Tobacco companies have been criticized for decades for targeting Black communities, with studies documenting industry marketing for menthol cigarettes in magazines like Essence and Ebony, and with billboards and discounts targeted at Black neighborhoods.

Lobbying over the ban has been intense, with Reynolds and Altria donating millions of dollars in recent years to Republican-controlled super PACs and also spending millions lobbying in Congress.

Some Republican lawmakers have opposed the ban, including Senator Marco Rubio of Florida, who is supported by a PAC that received $10,000 from Reynolds late in 2022. He wrote letters in July warning that the ban could give Mexican drug cartels a new illegal substance to traffic.

A spokesman for Mr. Rubio said two Democrats signed a similar letter and that supporters backed the senator because they agreed with his agenda, not the other way around.

Some House Republicans have also sent letters to the administration warning that the ban could have a disastrous effect on small businesses and that it could encourage cigarette smuggling that would benefit terrorist groups.

In June, a House appropriations bill included a provision that would have prohibited any spending on imposing the ban. Representative Andy Harris, a Republican and doctor from Maryland, argued that a ban would “take products out of the legal system and put them into illicit markets,” helping criminals and straining law enforcement.

Representative Debbie Wasserman Schultz, Democrat of Florida, introduced a measure to protect the ban, telling fellow House members that they had “succumbed to Big Tobacco yet again” and urging them to protect future generations. “We have to prevent more death,” she said.

The bill stalled on the House floor and is said to have little chance of passing.

Opponents of the ban demonstrated last month in front of the Manhattan office of Senator Chuck Schumer, the Democratic majority leader.

Gwen Carr, the mother of Eric Garner, who died after a police officer placed him in a chokehold, warned at the protest that a menthol ban would increase police encounters. “This will create more havoc in the Black and brown communities,” she said.

In an interview, Ms. Carr said she had not received money from tobacco companies. “I can’t be bought,” she said.

Ebonie Riley, a senior vice president at the National Action Network, acknowledged the group had received money from tobacco companies but declined to say how much. She said the group’s opposition to the menthol ban was not related to those donations.

“We don’t endorse smoking of any kind, but we do endorse adult decisions,” Ms. Riley said.

Ms. Riley also attended one of the largest White House meetings about the ban late last month. Attendees included senior White House officials; Dr. Robert Califf, the F.D.A. commissioner; and Xavier Becerra, the secretary of Health and Human Services. The National Organization of Black Law Enforcement Executives, which for years listed Reynolds as a sponsor and has received funding from Altria, was also there.

Opponents to the ban supplied White House officials with a report issued by a task force in Massachusetts, where flavored tobacco has been banned for years, that recommended criminal charges for possession or sale of banned products. Tobacco companies have argued that such a provision would lead to the use of more force by the police in minority communities.

Reynolds representatives also met twice with White House officials in November, said Luis Pinto, a company spokesman. He said the company argued that bans were not effective and that the F.D.A. had vastly underestimated the cost of keeping illegal menthol cigarettes out of the country.

Mr. Pinto said White House officials had inquired about the matter, and Reynolds followed up with an F.D.A. report estimating that enforcement would cost about $659,000 a year for the work of five employees.

“The illicit cigarette market is already thriving; and a menthol ban will only fuel the size, scope and span of that market, as millions of menthol cigarette smokers will look for a replacement,” according to a follow-up letter Reynolds sent on Nov. 14.

David Sutton, an Altria spokesman, said the company was also concerned about illicit sales as well as lost tax revenue and jobs.

“We believe equitable harm reduction, not prohibition, is the better path forward, and that the F.D.A. should authorize smoke-free products and encourage adult smokers to transition to a smoke-free future,” Mr. Sutton said in an email.

Peter Baker and Shane Goldmacher contributed reporting. Kitty Bennett contributed research.


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