Local Movement to Ban Menthol Tobacco Products as a Result of Federal Inaction

The article by Chaiton et al¹ in this issue of JAMA Internal Medicine is the first empirical confirmation that banning the sale of menthol tobacco products is good for public health. The investigators surveyed individuals in Ontario, Canada, who smoked menthol cigarettes before and 1 month after the province implemented a full menthol cigarette ban on January 1, 2017. They found that 40% of menthol smokers attempted to quit smoking and 12% succeeded, substantial increases over historical levels and higher than the percentage who predicted that they would try to quit before experiencing the ban. In addition, they found that a larger proportion (29%) reported using other flavored tobacco or e-cigarette products (menthol was not banned in e-cigarette products) compared with preban self-predictions (6%).

Menthol is a particularly important additive to cigarettes because, in addition to being a flavor, it is a local anesthetic that makes it easier to inhale tobacco smoke and modulates the effects of nicotine in a way that allows tobacco companies to tune nicotine and menthol delivery to maximize nicotine’s addictive effect.² The 2009 Family Smoking Prevention and Tobacco Control Act, which gave the US Food and Drug Administration (FDA) authority to regulate tobacco products, included a provision that prohibited the use of characterizing flavors, including strawberry, grape, orange, clove, cinnamon, pineapple, vanilla, coconut, licorice, cocoa, chocolate, cherry, or coffee, but notably not menthol, in cigarettes. It is easy to understand why the tobacco industry fought so hard³ to successfully exclude menthol from the flavor ban. Menthol cigarettes are a starter product for youths,⁴ comprise 30% of cigarette sales,⁵ and are the dominant product smoked by African American individuals. Tobacco companies threatened to block the bill if menthol was prohibited.³

The US Congress compromised by directing the FDA to have its new Tobacco Products Scientific Advisory Committee complete a report on “the impact of the use of menthol in cigarettes on the public health, including such use among African Americans, Hispanics, and other racial and ethnic minorities”⁶ within a year to inform future regulation. The Tobacco Products Scientific Advisory Committee completed the report within a year, concluding in July 2011 that “the removal of menthol products from the marketplace would be beneficial to the public’s health.”⁷

Despite menthol cigarettes representing 5% of cigarette sales in Canada compared with 30% in the United States, the results of the study by Chaiton et al¹ have 2 important implications for the United States and the rest of the world. First, as predicted, eliminating menthol is good for public health because it leads to an increase in quitting. Second, it is important that flavor bans be comprehensive, including all tobacco products (such as e-cigarettes) and all flavors. There are also likely to be additional public health benefits because elimination of menthol and flavors will make cigarettes and other tobacco products less attractive and less easy to smoke for youths.

In 2016, the FDA tried to limit the use of menthol and other flavors in e-cigarettes and other noncigarette tobacco products but was blocked by the Obama Administration.⁸ As of January 12, 2018, the FDA had not regulated menthol in cigarettes or any other tobacco product.

This failure at the federal level has spawned local action to stop the sales of menthol tobacco products. After community outreach by health advocates, town hall meetings, and work with clergy, aldermen, and women to argue that menthol products were being disproportionately marketed to black youths, in December 2013, the Chicago City Council passed the first menthol restrictions, forbidding the sale of menthol and all flavored products within 500 ft of Chicago public schools. In June 2017, the city and county of San Francisco prohibited the sale of all flavored tobacco products, including menthol.⁹

This move was too much for the tobacco industry. Shortly after Mayor Ed Lee signed the new law in San Francisco, with $700 000 from tobacco giant RJ Reynolds, a group of self-proclaimed concerned citizens and local grocers announced that they were going to force a referendum on the new law to oppose government overreach and to protect freedom of choice.¹⁰ Their Let’s Be Real San Francisco collected enough signatures to force a popular vote on the ordinance on the June 2018 ballot.

Far from a group of concerned citizens, Let’s Be Real is led by a tobacco industry executive and attorneys from a law firm with longstanding ties to the industry. According to official filings, the principal officer of the committee is David Spross, not of San Francisco but of Winston-Salem, North Carolina. Spross is vice president of state government relations at tobacco company RJ Reynolds. Attorneys from the well-connected law film Nielsen Merksamer (which represents RJ Reynolds and Altria) are serving as treasurer and assistant treasurer, respectively, of the campaign.

This situation is a replay of the industry’s 1983 referendum campaign to overturn San Francisco’s then-new law that limits smoking in the workplace and public places. (Nielsen Merksamer worked on that one, too.) Despite being outspent more than 10 to 1, health advocates successfully defended the ordinance, which subsequently encouraged states and communities around the world to create smoke-free environments.

What about the FDA? They are still thinking about what to do, which means that meaningful action on menthol and flavors is years away, if ever.

In the meantime, as with clean indoor air and tobacco tax policy, the action will occur at the local and state levels. On the basis of the 1983 experience, a win in San Francisco could substantially accelerate the movement to end the sale of menthol and flavored tobacco products, making the FDA increasingly irrelevant.