It took a lawsuit to jolt the FDA into action, a lengthy HHS rulemaking process will follow, and a protracted and frustrating legal assault from tobacco companies against decades of strong data seems an inevitable denouement. But let’s take a moment anyway to savor a meaningful win for family physicians and their patients — one the Academy has long worked toward and swiftly lauded, and which would permanently improve public health.
I’m talking about the Biden administration’s move toward prohibiting the manufacture and sale of menthol cigarettes and flavored cigars, an action for which the Academy has steadily and loudly advocated.
It’s not a difficult position for us to take. Use of menthol cigarettes was already lagging a general decrease in cigarette use when it began increasing in recent years. In 2018, menthol cigarettes made up 36% of all cigarette sales, the highest proportion since 1967 (when major tobacco companies were required to start reporting this data). This was especially troubling given the big role that menthol cigarettes play in smoking initiation, particularly among young people. Tobacco use is the leading cause of preventable death, disease and disability among Americans — a problem made worse by the greater harms and difficulty quitting associated with menthol cigarettes. More than half of youth who smoke use menthol cigarettes. That number is closer to 70% among Black youth, a population at whom tobacco companies have long aimed predatory marketing. The CDC says nearly 85% of Black smokers use menthol cigarettes, compared with 29% of white smokers.
These are clear-cut truths, yet last month’s announcement was a legal buzzer beater. A 2013 petition from 20 medical and health organizations called for the FDA to ban menthol cigarettes; five years later, (then) FDA Commissioner Scott Gottlieb, M.D., signaled his intention to advance such a policy but was thwarted by the Trump administration. A lawsuit seeking to compel the FDA’s decision on the original petition yielded a court-ordered deadline: April 29, 2021.
Over this span, the AAFP’s advocacy on menthol and other flavored tobacco products, in line with our commitment to preventing and treating tobacco dependency across all populations, included (but was hardly limited to)
• an August 2013 letter responding to an FDA request for comments,
• a 2018 statement saying vigorous policymaking should emerge from the FDA’s Comprehensive Plan for Tobacco and Nicotine Regulation,
• participation in an April 2019 petition calling for stronger action to prevent youth smoking, and
• 2020 criticism of FDA enforcement policy on e-cigarettes that fell short of the mark.
The proposed ban won’t diminish our activity in this area but will instead allow renewed focus across a couple of big fronts.
First, there’s some important messaging incumbent on the Academy and on family physicians. We must vociferously pre-empt a classic Big Tobacco tactic: the canard that a product ban would be enforced against consumers. It should be obvious that nobody is going to get slapped in handcuffs for trying to buy a pack of Kools, but that specter was among the falsehoods perpetrated by a coalition that last fall successfully defeated California’s menthol ban. What was a public-health slam dunk is now a ballot referendum set for this November and likely to be dominated by tobacco money.
With this in mind, we used the AAFP’s new advocacy Twitter account to point out that no regulatory or enforcement action would penalize tobacco consumers, and no product ban should unfairly target Black communities. These are messages I’m sure we’ll repeat as tobacco companies combat the FDA’s new efforts.
That brings me to the other big front, also prompted by the tobacco industry’s desire to protect its profits. The CDC reports that in 2018 alone, tobacco companies spent $9.06 billion marketing cigarettes and smokeless tobacco in the United States. That’s a million bucks an hour to get or keep Americans addicted to products that all physicians know are harmful to their patients. In other countries that have managed to institute product bans, tobacco companies have gone to court and turned the data inside out, securing at least temporary victories in countries such as Brazil and Chile. Here, colossal money will be devoted to grasping at the status quo, much of it aimed at disproving your knowledge and experience. So we’ll continue to back you up in the examination room as well as in D.C.
As others have pointed out, this isn’t a simple win, and keeping it isn’t going to be a short skirmish. We should expect a thick layer of legal wrangling on top of this nation’s deliberate rulemaking process. But few federal policies could have a more sweeping positive effect on public health and health equity. Especially in the wake of COVID-19, everybody deserves to breathe easier.
Stephanie Quinn is senior vice president of advocacy, practice advancement and policy.