On June 22, 2009, the Family Smoking Prevention and Tobacco Control Act was signed into law by President Obama, granting the Food and Drug Administration (FDA) the authority to regulate the manufacture, distribution, and marketing of tobacco products.1 Some of the specific restrictions in this law include banning the sale of tobacco products to minors, requires disclosure of ingredients in tobacco products, requires warning labels on smokeless tobacco products, and bans cigarettes with characterizing flavors.1 Flavor bans were included because flavored tobacco products are often perceived as less harmful than tobacco flavored tobacco products and are often a starter product for youth.2 However, menthol was excluded from the flavor ban, and the flavor ban was limited to just cigarettes and did not include other tobacco products, such as cigars.
While the flavor ban has helped the rate of youth cigarette use, it has led to a shift in what combustible tobacco products youth and young people use. In 2019, more young people tried a cigar for the first time than a cigarette.3 Among youth who ever tried a cigar or cigarillo, nearly 70% of cigarillo users and over half of cigar users reported that the first cigar they tried was flavored.3 Also, the current flavor ban as is does not address the health inequities in tobacco use. In fact, the tobacco industry has strongly marketed menthol cigarettes to African Americans.6 Among non-Hispanic African American smokers, over 85% use menthol cigarettes, compared to 30% of non-Hispanic White smokers.3 Menthol cigarette smokers are less likely to successfully quit smoking than non-menthol cigarette smokers, and this is especially true for African American smokers.3
These disparities have prompted federal and local governments including local health departments to act. Chicago became the first city to regulate menthol cigarettes in 2013, banning the sale of menthol cigarettes within 500 feet of schools.4 Since then, banning the sale of menthol and other flavored tobacco products has become a priority for local health departments throughout the U.S. To date, over three hundred cities and counties have enacted restrictions on the sale of flavored tobacco products, including highly populated areas like Los Angeles and San Francisco.5 Massachusetts became the first state to restrict the sale of all flavored tobacco products, including menthol cigarettes, in 2019.5
With the growing support for flavored tobacco products restrictions and the disparities flavored tobacco products, the FDA is proposing new rules which would prohibit menthol as a characterizing flavor for cigarettes and prohibit all characterizing flavors in cigars.1 These proposed rules were published on the Federal Regulations website on April 28, 2022.
Local health departments and other interested individuals and organizations can help the FDA pass these proposed rules by submitting a comment on them. The FDA’s Center for Tobacco Products is looking for local health departments and partners to submit comments that include data and studies especially any data or studies conducted at the local level and not previously cited by FDA. Comments on these proposed rules can be submitted from May 4th to July 5th. For a more in depth explanation of the FDA’s rule process and what to include in a public comment, please see the FDA’s webinar from February 2022.
For more information about menthol and flavored tobacco products, and how to make a helpful comment, please see the following resources:
FDA – Menthol and Other Flavors in Tobacco Products
Center for Black Health and Equity - Menthol
Public Health Law Center – Tobacco Control Act and Rule Making Process
NACCHO’s Tobacco Policy Statement
Coalition Letter on Prohibiting Menthol
1U.S. Food and Drug Administration. (2009). Family smoking prevention and tobacco control act. U.S. Food and Drug Administration. Retrieved March 29, 2022, from https://www.fda.gov/tobacco-products/rules-regulations-and-guidance/family-smoking-prevention-and-tobacco-control-act-overview
2Stanton, C. A., Villanti, A. C., Watson, C., & Delnevo, C. D. (2016). Flavoured tobacco products in the USA: Synthesis of recent multidiscipline studies with implications for Advancing Tobacco Regulatory Science. Tobacco Control, 25(Suppl 2), ii1–ii3. https://doi.org/10.1136/tobaccocontrol-2016-053486
3U.S. Food and Drug Administration. (2021). FDA on track for actions to address tobacco-related health disparities. U.S. Food and Drug Administration. Retrieved March 29, 2022, from https://www.fda.gov/news-events/fda-voices/fda-track-take-actions-address-tobacco-related-health-disparities#:~:text=Much%20like%20it%20sounds%2C%20a,(including%20menthol)%20in%20cigars
4Respiratory Health Association. (n.d.). Chicago becomes First City to regulate menthol tobacco. Respiratory Health Association. Retrieved March 29, 2022, from https://resphealth.org/timeline/chicago-becomes-first-city-to-regulate-menthol-tobacco/
5Campaign for Tobacco-Free Kids. (2022). States & localities that have restricted the sale of Flavored Tobacco Products. Campaign for Tobacco-Free Kids. Retrieved March 29, 2022, from https://www.tobaccofreekids.org/assets/factsheets/0398.pdf
6 The Center for Black Health & Equity. (n.d.). Menthol: The Center for Black Health & Equity. The Center. Retrieved April 28, 2022, from https://www.centerforblackhealth.org/mentholandissues