Menthol and Flavors Rules Implementation Delayed: What Local Health Departments Can Do About It

Feb 09, 2024 | Daniel Hamilton

On April 28, 2022, the FDA proposed new rules to eliminate menthol from cigarettes, and other characterizing flavors from all other combustible tobacco products and opened public comments on the proposed rules.1 After reviewing the thousands of submitted comments, the FDA finalized and forwarded the new proposed rules to the Office of Management and Budget (OMB) in October 2023.2 The confirmed implementation of these rules has since been delayed.

Menthol smokers are less likely to successfully quit smoking compared to those who smoke non-menthol cigarettes, contributing to problems with health equity among multiple populations, particularly within the Black community and the LGBTQ+ community. More than 81% of Black smokers using menthol cigarettes, compared to 34% of non-Hispanic White smokers.3 Among LGBTQ+ smokers, 54% of gay or lesbian people and 49% of bisexual people smoke menthols compared to 42% of heterosexual people.3

Characterizing flavors, which are non-tobacco or menthol flavors, were removed from cigarettes with the implementation of the Family Smoking Prevention and Tobacco Control Act of 2009.4 While these flavor bans reduced youth implementation of cigarette use, these bans did not apply to other combustible tobacco products, such as cigarillos and cigars, and youth usage of these products has increased. Among youth who use these products, 70% of cigarillo users and over half of cigar users reported that flavored tobacco products were the first they tried.5

The risks that menthol and flavored tobacco products pose to public health has led local health departments to act. In 2013, Chicago became the first city to regulate menthol cigarettes by banning the sale of menthol cigarettes within 500 feet of schools.6 Since then, almost 400 cities, towns and counties have joined them in either fully or partially restricting the sale of flavored tobacco products including menthol.7 The states of California, Maine, Maryland, Massachusetts, New Jersey, New York, Rhode Island, and Utah have also implemented statewide restrictions on the sale of flavored tobacco products with some exceptions.7

The growing support across the country for the removal of menthol and flavors from combustible tobacco products led to FDA’s proposed rules. The delay in implementation of the rules to eliminate menthol delays a critical step in addressing health inequities and has damaging effects on the public health.

While the delay in the implementation of these rules poses a risk to public health, there are still actions local health officials can take to reduce the impact of menthol and flavors. Local health departments can continue to advocate for policy change in their communities to restrict the sale of menthol and other flavored tobacco products. Local health officials can find sample language and lessons learned from local flavors restrictions in the Public Health Law Center’s Flavored Tobacco Toolkit. In addition, local health departments can continue to educate their communities on the dangers of menthol and other tobacco products, and continue to promote cessation resources, such as state quit lines and tobacco cessation programs.

References

1U.S. Food and Drug Administration. (2022, April 28). FDA proposes rules prohibiting menthol cigarettes and flavored cigars to prevent youth initiation, significantly reduce tobacco-related disease and death. https://www.fda.gov/news-events/press-announcements/fda-proposes-rules-prohibiting-menthol-cigarettes-and-flavored-cigars-prevent-youth-initiation#:~:text=Today%2C%20the%20U.S.%20Food%20and%20Drug%20Administration%20is,all%20characterizing%20flavors%20%28other%20than%20tobacco%29%20in%20cigars.

2Office of Management and Budget. (n.d.). Pending EO 12866 regulatory review. https://www.reginfo.gov/public/do/eoDetails?rrid=341268

3Centers for Disease Control and Prevention. (2023, November 2). Menthol smoking and Related Health Disparities. https://www.cdc.gov/tobacco/basic_information/menthol/related-health-disparities.html

4U.S. Food and Drug Administration. (2009). Family smoking prevention and tobacco control act. U.S. Food and Drug Administration. Retrieved February 8, 2024 from https://www.fda.gov/tobacco-products/rules-regulations-and-guidance/family-smoking-prevention-and-tobacco-control-act-overview

5U.S. Food and Drug Administration. (2021). FDA on track for actions to address tobacco-related health disparities. U.S. Food and Drug Administration. Retrieved February 8, 2024, 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

6Respiratory Health Association. (n.d.). Chicago becomes First City to regulate menthol tobacco. Respiratory Health Association. Retrieved February 8, 2024, from https://resphealth.org/timeline/chicago-becomes-first-city-to-regulate-menthol-tobacco/

7Truth Initiative. (2023, September 30). Flavored tobacco policy restrictions - truthinitiative.org. https://truthinitiative.org/sites/default/files/media/files/2024/01/Flavored-tobacco-policy-restrictions-Sept.30.2023.pdf

[VV1]Should this be: “continue to advocate for policy change” or do they have the ability to implement?


About Daniel Hamilton

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