US Food and Drug Administration Sued Over Inaction on Menthol Cigarettes

Kelsey Romeo-Stuppy

The U.S. Food and Drug Administration (FDA) is being sued over their inaction on menthol cigarettes. Action on Smoking and Health (ASH) and our colleagues at The African American Tobacco Control Leadership Council (AATCLC) are calling on the court to require the Food and Drug Administration (FDA) to fulfill their mandate and stop allowing senseless deaths from mentholated tobacco products.

Read AATCLC and ASH’s joint complaint against the FDA here.

In 2009, the United States Congress passed—and President Obama signed into law—the Family Smoking Prevention and Tobacco Control Act. This act implemented a flavor ban in cigarettes, but excluded menthol, subject to further research on the public health impacts of menthol in cigarettes.

In 2011, the FDA’s Advisory Committee concluded that the “removal of menthol cigarettes from the marketplace would benefit public health in the United States.” That same report determined that if menthol cigarettes were removed from the marketplace in 2010, then by 2020, roughly 17,000 premature deaths would have been avoided, and about 2.3 million people would not have started smoking; and by 2050, the cumulative gains would have resulted in over 300,000 premature deaths avoided, and over 9 million people that would not have started smoking.

Now, 11 years since the law passed, the FDA still hasn’t taken action. This is a dangerous and deadly reluctance to enact public health measures that will protect all Americans, but specifically the African American community. For the African American community, this would have meant that (a) by 2020, roughly 4,700 premature deaths would have been avoided, and about 461,000 African Americans would not have started smoking; and (b) by 2050, over 66,000 premature deaths would have been avoided, and over 1.6 million African Americans would not have started smoking.

At ASH USA our work is global, and we are seeing many other countries take action against menthol cigarettes. The WHO Framework Convention on Tobacco Control (FCTC) Guidelines for Articles 9 and 10 encourage countries to begin ‘Prohibiting or restricting ingredients which may be used to increase palatability in tobacco products,’ which includes menthol. Many countries including Canada, Ethiopia, Uganda, the European Union and others are fulfilling their obligations and protecting the right to health of their citizens by taking menthol off the market, but the United States has yet to do so.

This case takes on an even greater importance now, as the Black Lives Matter movement continues to gain momentum. Banning menthol is a straightforward step that the FDA could take to protect the health and lives of thousands of Black Americans. ASH and AATCLC are calling upon the FDA to act on its own evidence that a menthol ban would benefit public health. We hope that this lawsuit will be the push that the FDA needs to protect American citizens from the harms of mentholated cigarettes.

AATCLC and ASH are represented by Christopher K. Leung of Pollock Cohen, LLP.

Kelsey Romeo-Stuppy is the Managing Attorney of ASH>Action on Smoking & Health, USA 

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