Biden unlikely to ban menthol cigarettes, despite urging from health officials

The U.S. surgeon general said Tuesday that a federal ban on menthol cigarettes would be one of the most effective ways to slash tobacco-related illnesses and deaths among Black people — even as the clock winds down on the Biden administration’s ability to do anything about it.

The long-standing promise of a ban on menthol cigarettes, which has been years in the making, is unlikely to move forward before President-elect Donald Trump takes office in January. The ban had been expected by the end of this year.

It’s possible that the Food and Drug Administration may push through its proposal to reduce the addictiveness of cigarettes by capping the levels of nicotine. But menthol cigarettes are likely to remain on the market.

“As a public health advocate — and as a Black woman and mother — I am heartbroken that this rule has not made it over the finish line,” said Dr. Avenel Joseph, interim executive vice president of the Robert Wood Johnson Foundation, a nonprofit health care advocacy group.

The FDA announced it would begin the process of banning menthol tobacco cigarettes in 2021. Since then, it has done all it is legally authorized to do to put the finalized rule to ban menthol in motion. It has since been in the hands of the Biden administration to move forward. Instead, it has been repeatedly delayed.

Public health officials — including Biden’s own surgeon general — have said the science is clear: Menthol tobacco products should be pulled from the market to save lives.

But it’s politics, not public health, that is likely to keep menthol cigarettes on the market as Biden’s term ends. The Congressional Review Act appears to be key in the decision-making process.

Any rule Biden OKs in the last few weeks of his administration is subject to congressional review. Incoming lawmakers have 60 days to take a close look at any new rule, and, if they deem it necessary, reverse it. (Legislative days include only weekdays and don’t take into account coming winter holidays.)

That’s a risk the Biden administration appears unwilling to take.

When the Trump administration takes over in January, the measure could be repealed almost immediately. In such a case, Congress would be prohibited from releasing another, similar rule.

In other words, if it doesn’t happen now, experts say, it won’t happen any time soon.

In the new report, the surgeon general, Dr. Vivek Murthy, recommended multiple possible strategies to reduce widespread smoking-related health disparities among Black people and other vulnerable groups.

The vast majority of Black smokers use menthols, whose flavor creates a cooling sensation, making it easier to inhale tobacco smoke deep into the lungs.

It also makes it more difficult to quit smoking.

“This puts the success of quitting lower in the Black population compared to the white population, despite the fact that Black people attempt to quit more frequently,” Murthy said. “A menthol ban would help to address some of those disparities.”

“Few policies would upend the tobacco companies’ insidious, racist playbook more than a ban on menthol cigarettes, which are largely responsible for the 45,000 Black people in the United States who die from tobacco-related illnesses annually,” Joseph said. The Centers for Disease Control and Prevention has previously reported on the tobacco industry’s menthol ads targeting Black communities.

Murthy deferred questions about whether the Biden administration would push the ban through as one of its final acts. Spokespeople for both the White House and the FDA said they had no updates on the matter.