Jan 12, 2024 - Health

Biden's upcoming decision on menthol ban pits politics against public health

Illustration of a cigarette resting on an ash tray with a vote button inlayed.

Illustration: Natalie Peeples/Axios

An oft-delayed ban on menthol cigarettes is in doubt, as President Biden's pledge to "follow the science" runs into election-year politics.

Why it matters: Inaction on a ban that is expected to prevent the deaths of thousands of Black Americans each year has already left some usual allies questioning if the Biden administration is putting politics over public health.

  • According to the Washington Post, some in the White House have raised concern that banning products predominantly used by Black consumers could weaken Biden's favorability among Black voters — a key constituency whose support Biden's campaign is working to shore up.

What they're saying: "There is no more science that's needed. There is no more research that's needed. So clearly, the administration is basing their decision on something other than the science and the research," Nancy Brown, CEO of the American Heart Association, told Axios.

Yes, but: There's a split among the influential Congressional Black Caucus on whether to make a menthol ban a priority during an election year, and leading civil rights groups are divided on whether a ban would result in increased policing of Black communities.

  • That lack of unity could make a menthol ban be seen as less of a political winner for Biden, despite the health benefits it would bring.

Between the lines: Menthol products account for over a third of U.S. tobacco sales and have been aggressively marketed to Black communities, contributing to disparities in tobacco-related illnesses and death.

  • Over 80% of Black adults who smoke use menthol products, according to the Centers for Disease Control and Prevention, compared with 34% of white adults.
  • The CDC estimates that 157,000 Black Americans died prematurely from smoking menthol cigarettes from 1980 to 2018.
  • "Menthol makes it easier to start smoking and harder to quit, which is why tobacco companies have long targeted menthol cigarettes to people of color and children, "said Avenel Joseph, vice president for policy at the Robert Wood Johnson Foundation. "This racist business model, fueled by predatory marketing schemes, has been catastrophic,"

Brown, the AHA leader, and the heads of the American Cancer Society and the American Lung Association in an op-ed this week called for the White House to follow their pledge to "follow the science" and move ahead on a ban that would save lives.

  • "Our question has always been: If there's no argument on the science, why now are you deciding to take your foot off the pedal?" said Yolonda Richardson, CEO of the Campaign for Tobacco-Free Kids.
  • The White House is facing an internal deadline to finalize the ban by next week, according to the Post. If it's issued later this year, that could make it more vulnerable to being reversed if Biden loses the election.
  • The White House said it could not comment on the rule while it's still under review.

Catch up quick: When Congress gave the Food and Drug Administration power to regulate tobacco in 2009, the law banned most flavored cigarettes but exempted menthol.

  • Following years of arguments from public health groups, the FDA in April 2022 issued proposed rules that would outlaw the products.
  • But the agency missed a self-imposed August 2023 deadline to finalize the rule. The agency in October submitted a final version to the White House for review, the last step before being issued.
  • The final rule was expected to be released in December, but it still hasn't materialized and, at least formally, the White House has said it's expected by March.

The other side: The tobacco industry and critics of a menthol ban said it could fuel an illegal black market for the products and lead to more interactions between the police and Black people.

  • Meanwhile, tobacco companies like R.J. Reynolds, maker of the No. 1-selling menthol brand, Newport, also argue there are more effective ways to reduce harm from smoking.
  • While the NAACP supports a menthol ban, the ACLU has raised concerns about how it would be implemented. The Rev. Al Sharpton's National Action Network has also spoken out against the ban.
  • The argument that a ban could result in Black people being targeted by police may be potent, said Guy Bentley, who oversees consumer issues at the libertarian think tank Reason Foundation.
  • "Voters would quite rightly ask 'Why is this administration banning a product disproportionately used by Black smokers?'" Bentley told Axios.

Those concerns, even if they are unfounded, play to voter fears on both sides of the political spectrum, said Princeton University history professor Keith Wailoo, who's studied tobacco marketing.

  • "There are officials like Al Sharpton who are singing from the same songbook of the tobacco industry ... spreading anxiety and concern around these hot-button issues," Wailoo said.
  • "I suspect the administration is alert to this."
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