Biden criticized for failing to ban menthol cigarettes after Trump withdraws proposal

The Summary

• The Biden administration proposed a ban on menthol cigarettes but never finalized it.

• The Trump administration has withdrawn the proposal, so menthol appears likely to remain in cigarettes.

• The American Lung Association is criticizing Biden’s inaction, saying the ban could have saved lives.

When Joe Biden’s administration announced its intent to ban menthol cigarettes, the medical community welcomed the news, anticipating that it could save hundreds of thousands of lives over several decades and encourage more people to quit smoking.

Though flavored cigarettes have been banned in the U.S. since 2009, menthol is the lone exception. The flavor improves the taste of cigarettes and reduces the feeling of throat irritation, which can make the cigarettes particularly addictive.

The Biden administration announced its interest in banning menthol cigarettes in 2021, then proposed a formal rule the next year. Public health experts anticipated that the rule would be finalized in the summer of 2023, but the deadline came and went. The administration then postponed the decision until spring 2024, at which point it said it needed even more time.

Biden left office without finalizing the rule, and the Trump administration withdrew the proposal last week. Menthol appears poised to remain in cigarettes indefinitely.

The American Lung Association — the country’s leading authority on lung health — on Wednesday criticized Biden for the missed opportunity.

“We’re really disappointed in former President Biden and him bowing to tobacco industry pressure,” said Thomas Carr, the association’s director of national policy.

In its annual “State of Tobacco Control” report, published Wednesday, the American Lung Association said Biden’s inaction will result in continued death and disease from smoking, which kills more than 490,000 people each year in the U.S.

The report describes Biden’s failure to finalize the menthol ban as a glaring example of the tobacco industry “taking more aggressive actions at the federal and state level to protect its profits.”

A representative for Biden’s office declined to comment. But last year, after the administration delayed the ban indefinitely, Xavier Becerra, Biden’s health secretary, said in a statement:

“This rule has garnered historic attention and the public comment period has yielded an immense amount of feedback, including from various elements of the civil rights and criminal justice movement. It’s clear that there are still more conversations to have, and that will take significantly more time.”

Massachusetts, California and Washington, D.C., already prohibit the sale of menthol cigarettes, and Oregon and Washington state are weighing similar bans.

The main argument against a menthol ban has focused on the potential for it to encourage unlicensed distribution of menthol cigarettes in communities of color, which some social justice advocates have said could lead to negative interactions with police. Around 80% of Black adults who smoke used menthol cigarettes as of 2020.

“This ban would have been yet another extension of the war on drugs, further undermining the relationships with our communities that are absolutely essential to our ability to fight crime,” said Diane Goldstein, executive director of the Law Enforcement Action Partnership, a nonprofit that supports drug policy and criminal justice reforms. Such comparisons between a menthol ban and the war on drugs allude to the increased incarcerations for nonviolent drug offenses that came out of the drug policy agenda, particularly among people of color.

Sarah Mills, who studies racial disparities in tobacco use, said the idea that banning menthol cigarettes would hurt Black communities has come at least in part from the tobacco industry. Reporting from the Los Angeles Times and The Washington Post has found that Big Tobacco companies donated to Black activists or civil rights organizations, which in turn lobbied against a menthol ban. The Law Enforcement Action Partnership is among the groups that have received funds from tobacco companies.

“Overpolicing is a very serious issue for Black and other communities, and the tobacco industry should not be using this serious issue to advance their own policy agenda,” said Mills, an assistant professor at the University of North Carolina at Chapel Hill, who wasn’t involved in the American Lung Association report.

Mills’ research has also shown that advertisements and promotions for menthol cigarettes in stores selling tobacco products are more common in neighborhoods with a greater share of Black residents.

During the election, the possibility of a menthol ban became a talking point in Republican messaging. The conservative nonprofit group Building America’s Future set aside millions for ads criticizing the ban, which primarily targeted Black voters in swing states. One warned that Democrats are “coming after your menthol cigarettes.”

Mills lamented the Trump administration’s decision to withdraw the proposal.

“This is devastating for public health,” she said. “My hope is that cities and states continue to move forward with implementing local and statewide bans.”

However, two major cigarette companies, Altria and Reynolds American, said they support the Trump administration’s decision.

“We are pleased that the new Administration recognizes prohibitionary policies don’t work. There are more effective ways to transition adult smokers away from cigarettes,” said Luis Pinto, vice president of communications at Reynolds American, in a statement.

David Sutton, an Altria representative, said that “criminalizing menthol cigarettes and flavored cigars would lead to serious consequences, including an illicit market and undermining public health and underage tobacco prevention efforts.”

In the absence of a menthol ban, Carr said, the federal government could take other actions to reduce the health risks associated with smoking. The American Lung Association report calls on the Food and Drug Administration to finalize rules for a tracking system that would identify counterfeit or smuggled tobacco products. It also calls on Congress to pass legislation requiring e-cigarette manufacturers to pay fees to the FDA that would help fund the agency’s regulatory activities.

The FDA would not comment, citing a temporary pause in communications implemented by the Trump administration as part of its transition. Trump’s acting health secretary, Dr. Dorothy Fink, directed federal health agencies last week to halt public messaging until Feb. 1.

This article was originally published on NBCNews.com