Lawsuit demands menthol cigarette ban following White House delays

[April 03, 2024]  By Jonathan Stempel

(Reuters) - The U.S. government was sued on Tuesday by anti-smoking groups that want a ban on menthol cigarettes and blame the Biden administration for delaying it.

Found naturally in peppermint and similar plants, menthol is used disproportionately by Black smokers, in part because of tobacco companies' marketing efforts and also appeals to younger smokers.

The U.S. Food and Drug Administration in April 2022 had proposed banning menthol. Health officials originally planned to publish a final rule by last August, and after missing that deadline pushed back the target date to last month.

That deadline has now passed, prompting the lawsuit to require the FDA and its parent agency, the Department of Health and Human Services, to implement a ban.

"Because of defendants' inaction, tobacco companies have continued to use menthol cigarettes to target youth, women, and the Black community--all to the detriment of public health," the lawsuit filed in federal court in Oakland, California, said.

Menthol is the only cigarette flavor still allowed under a 2009 law that gave the FDA authority to regulate tobacco.

The lawsuit was filed by the African American Tobacco Control Leadership Council, Action on Smoking and Health, and the National Medical Association.

Neither HHS nor the FDA immediately responded to requests for comment.

The FDA has said that eliminating menthol could prevent 324,000 to 654,000 smoking deaths in the United States over 40 years.

About 10.1 million Americans started smoking because of menthol cigarettes between 1980 and 2018, and 378,000 people died prematurely, according to the Centers for Disease Control and Prevention.

Menthol flavored cigarettes are displayed in a store in New York March 30, 2010. REUTERS/Lucas Jackson/File Photo

Sales of menthol-flavored cigarettes made up 37% of U.S. cigarette sales in 2021, the highest since data began being kept in 1963.

About 81% of Black adults who smoke cigarettes use menthol varieties, compared with just 34% of white adults, the CDC said.

Altria and British American Tobacco each generate more than 20% of revenue from menthol, Morningstar analyst Philip Gorham estimated last month.

In a joint statement, the plaintiffs in Tuesday's lawsuit said a menthol ban would benefit the Black community, and accused the Biden administration of having "fallen for disinformation and fear-mongering" by the tobacco industry.

The White House is hoping for a strong turnout among Black voters to bolster Democratic incumbent Joe Biden's reelection prospects against Republican former President Donald Trump.

The plaintiffs also sued the FDA for a menthol ban in June 2020. They dismissed that case in June 2022, five weeks after the FDA proposed a ban.

The case is African American Tobacco Control Leadership Council et al v. U.S. Department of Health and Human Services et al, U.S. District Court, Northern District of California, No. 24-01992.

(Reporting by Jonathan Stempel in New York; Editing by Leslie Adler)

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