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On April 26, 2024, two years later after the Food and Drug Administration (FDA) submitted rules to the White House to ban menthol cigarettes and flavored cigars, the Biden Administration announced a delay in the ban for over a year. Secretary of Health and Human Services Xavier Becerra cited historic attention and public comment against and in favor of the ruling as the reason for the delay. According to Politico, the rule could be revived if President Biden wins reelection in November. The FDA has been attempting to ban menthol cigarettes since 2009, when federal law brought tobacco under FDA regulation.
The delay in this rule comes after pushback from the National Association of Convenience Stores (NACS) and other lobbyist groups, including the National Action Network and American Civil Liberties Union (ACLU). Menthol cigarettes account for approximately 34% of cigarette sales, which total $575,000 per year per store on average. The ruling would impact bodies that sell or manufacture menthol cigarettes, not individuals in possession of them, according to The Hill.
Opponents of the ruling, including NACS, say an outright ban will lead to a black market for menthol products, decreasing revenue for store owners. Because convenience stores capture the largest share of the tobacco market out of the retail industry, the rule stands to impact c-stores more than others. Opponents also argue that black market tobacco is less safe for consumers and reduces tax revenue for states.
“Unfortunately, many current users of these products will seek out illicit sources who don’t check IDs and who sell counterfeit products smuggled into the country.”
nna Bloom, director of government relations for NACS in an April 2022 article
In Massachusetts, the first state to implement a flavored tobacco ban in 2020, a market for illicit menthol products and cross-border smuggling has created a loss of $150 million in state tax revenue. According to the New England Convenience Store & Energy Marketer’s Association, this is due to consumers purchasing tobacco in nearby states like New Hampshire, with much lower taxes on tobacco, either directly or indirectly through black market sales.
A public comment period followed the initial rule, during which NACS submitted a comment that argued that a menthol ban would create an illicit market. They also argued that the FDA has not considered the impacts to the retail industry a menthol cigarette ban would have.
Though the rule has received criticism from the convenience industry and certain civil rights groups, other groups, such as the American Lung Association, argue that banning menthols would lead to a decrease in smoking in vulnerable communities. Similarly, eighty national health groups, including the American Heart Association and American Medical Association, placed a full-page ad in support of the ban in a November 2023 edition of the Washington Post in support of the ruling.
According to the Center for Disease Control, menthol cigarettes have been aggressively marketed to minority groups, including Black and LGBTQ people. Per CDC research, 81% of Black adult smokers smoke menthols, compared to 34% of white adults. Proponents of the menthol ban argue that it will reduce the amount of menthol cigarette smokers, leading to improved health outcomes for minority groups.
However, opponents to the ruling argue that black market menthol products are likely to disproportionately affect these groups. Certain advocacy groups, including the ACLU and the National Organization of Black Law Enforcement Executives (NOBLE) claim that a menthol cigarette ban would lead to an increase of tobacco-sales related arrests in the Black community. Lobbyists cite the 2014 death of Eric Gardner at the hands of police during an arrest for selling lose cigarettes.
“The National Action Network has… raised concerns that this ban will lead to the unintended consequences for Black people selling loose cigarettes,” said Ebonie Riley, senior vice president of the National Action Network.
