Yes, the FDA is considering a ban on menthol cigarette sales

Menthol-flavored cigarettes made up 37% of all cigarette sales in the U.S. in 2021, the Centers for Disease Control and Prevention (CDC) says. Menthol, a chemical naturally found in peppermint plants, makes cigarettes more addictive, and the cooling sensation it can create in the throat can also make cigarette smoke feel less harsh and easier to inhale.

According to the American Lung Association, the use of menthol cigarettes is highest among Black, brown and LGBTQ+ communities. Medical groups like the American Lung Association have long advocated for menthol cigarettes to be banned because they can make it easier to start smoking and disproportionately affect minority communities.

One VERIFY reader texted us to ask if President Joe Biden’s administration is really going to ban menthol cigarettes.

THE QUESTION

Is the FDA considering a ban on the sale of menthol cigarettes?

THE SOURCES

• Food and Drug Administration (FDA)
• FDA spokesperson
• Family Smoking Prevention and Tobacco Control Act
• Menthol cigarette report by the Tobacco Products Scientific Advisory Committee
• Office of the Federal Register
• Advanced notices of proposed rulemaking regarding menthol cigarette regulations in 2013 and 2018
• Scott Gottlieb, the Trump-appointed FDA commissioner who led the agency between 2017 and 2019
• Supplement to Citizen Petition: “Prohibit Menthol as a Characterizing Flavoring of Cigarettes and Cigarette Smoke”

THE ANSWER

Yes, the FDA is considering a ban on the sale of menthol cigarettes. The agency has weighed a potential menthol cigarette ban since 2009.

WHAT WE FOUND

The Food and Drug Administration (FDA) is finalizing a rule that would ban the sale of menthol cigarettes and flavored cigars. The ban was officially proposed in April 2022, although the FDA has been taking steps toward a potential menthol cigarette ban since 2009.

The FDA says the new rule will not punish consumers for the possession or use of menthol cigarettes or flavored cigars.

“FDA enforcement will only address manufacturers, distributors, wholesalers, importers and retailers who manufacture, distribute, or sell such products within the U.S.,” the FDA says.

A FDA spokesperson said the FDA is committed to issuing the new rules “in the coming months.”

“Final regulations such as these go through an extensive rulemaking process, which includes receiving valuable input from the public,” the FDA spokesperson said. “For these rules, the FDA received more than 250,000 comments from the public. The FDA is working to publish the rules in a timely fashion while ensuring this input has been appropriately reviewed and addressed.” 

FDA’s past actions regarding a menthol cigarette ban

A ban on menthol cigarettes has been in the works since 2009, when Congress passed the Family Smoking Prevention and Tobacco Control Act and President Obama signed it into law.

The law banned flavored cigarettes, with the exception of menthol cigarettes. It also created the Tobacco Products Scientific Advisory Committee to study the public health impacts of menthol cigarettes and other tobacco products. Upon completion of its study, the advisory committee was required to submit a report and recommendation regarding regulation of menthol cigarettes to the FDA.

The advisory committee submitted its menthol cigarette report to the FDA in 2011. In that report, the committee recommended to the FDA that the “removal of menthol cigarettes from the marketplace would benefit public health in the United States.”

In 2013, 19 public health organizations filed a citizen petition calling on the FDA to ban menthol cigarettes. The FDA issued a public notice seeking public comment “related to the potential regulation of menthol in cigarettes” a few months later, according to a document further supporting the petition. The FDA did not act further after the public comment period closed.

In 2018, the FDA issued another notice seeking public comment, this time about potential regulations on flavors in tobacco products in general. The notice included questions directly concerning a menthol cigarette ban, and the FDA declared its intent to take the next step in the rulemaking process and officially propose a ban on the sale of menthol cigarettes. However, the FDA once again did not act after the comment period closed.

A federal agency can issue a notice seeking public comment about a potential rule as the first step in the rulemaking process, according to the Office of the Federal Register. The next step is for the agency to then propose the rule itself, giving the public one last time to shape the potential new rule with feedback before the agency finalizes it.

“In response to the lack of action on or even attention” to menthol cigarette regulation, the African American Tobacco Control Leadership Council and Action on Smoking and Health sued the FDA in 2020 to compel it to act on the petition, the supporting document to the citizen petition says.

“Not one of these ANPRMs, collections of information, or compilations of scientific evidence has spurred the agency into action,” the supporting document says.

On April 28, 2022, the FDA finally proposed the rule banning the sale of menthol cigarettes and the lawsuit against the agency’s inaction was dismissed. This proposed rule is the one for which the FDA is reviewing comments and finalizing.

Scott Gottlieb, the Trump-appointed FDA commissioner who led the agency between 2017 and 2019, noted in a post to X, formerly known as Twitter, the rulemaking process for this ban was a multi-year process.

“This critical public health step is years in making,” Gottlieb wrote. “FDA staff deserve great credit for their commitment to advancing this policy.”

Gottlieb noted that the FDA issued an advanced notice of proposed rulemaking regarding a menthol cigarette ban while he was the FDA commissioner, and that the effort had bipartisan support.