Researchers estimate that a regulation banning menthol cigarettes would save about 654,000 lives over the next 40 years, especially those of Black smokers.
CNN  — 

The American Lung Association is putting more pressure on the White House to finalize rules to end the sale of menthol cigarettes and flavored cigars in the United States.

A scathing edition of the association’s annual State of Tobacco Control report, published Wednesday, calls on the Biden administration to finalize the proposed rules and says that failing to do so will result in more death and disease caused by smoking, especially among historically marginalized Black communities.

“Menthol cigarettes make it both easier to start and harder to quit by reducing the harshness of the smoke and cooling the throat,” the report notes. Researchers estimate that a regulation banning menthol cigarettes would save about 654,000 lives over the next 40 years, especially those of Black smokers, who are disproportionately more likely to smoke menthols.

In October, the US Food and Drug Administration sent rules for banning the manufacturing and sale of menthol cigarettes and flavored cigars to the White House’s Office of Management and Budget (OMB) for review. Within the OMB is the Office of Information and Regulatory Affairs, which is responsible for reviewing all regulatory action – and this review process is a key step before a final rule may be published in the Federal Register.

But no action on this regulation has been made since it was submitted to the OMB. Under a “timetable” for each rule – on menthol in cigarettes and flavors in cigars – a final rule action has been given the date of March.

“In an extremely disappointing end to 2023, the White House bowed to tobacco industry pressure and failed to move forward in 2023 with finalizing rules to eliminate menthol as a characterizing flavor in cigarettes and prohibit all characterizing flavors in cigars,” the new report says. “This lack of action prioritizes politics and tobacco industry profits over public health and if the White House fails to finalize the rules.”

Proponents of the regulation were hoping that the rule would be finalized by January 20. That would have given it exactly a year to be implemented ahead of Inauguration Day, when there could be changes coming to the White House.

“That would have given the FDA the year’s time it claimed was necessary to implement the regulation,” said Daniel Karon, an attorney based in Cleveland who has been following the menthol cigarette rule and who teaches consumer law at the University of Michigan Law School and The Ohio State University Moritz College of Law.

“Even if the Biden administration freed up the regulation to go forward, the question is, would that be sufficient time for the FDA to enact it? Or would it just die on the vine because Trump could come in and stop the rulemaking process in its tracks?” he said of the potential Republican nominee. “If the White House does not at least make an internal decision this week and Biden does not win a second term, a new president could kill the regulation before it ever gets started.”

Another hurdle if the rules are implemented: Tobacco companies will probably sue in federal court, Karon said.

“Big Tobacco will petition for two things: declaratory relief, that is, a declaration or order that what the FDA issued is illegal, and equitable relief, that is, an injunction requiring withdrawal of the regulation,” he said. “Declaratory and injunctive relief are likely going to be on Big Tobacco’s mind when it inevitably files its federal lawsuit against the federal government.”

Menthol cigarettes have emerged as a pivotal issue for President Joe Biden, who is facing an election year with worries over diminished enthusiasm from Black voters.

Some civil rights leaders with ties to the tobacco industry have raised concerns with the White House that a ban would criminalize menthol cigarettes and lead to an increase in deadly police interactions. Meanwhile, the NAACP and the Congressional Black Caucus have endorsed the ban, along with dozens of public health experts, saying it would save hundreds of thousands of Black lives.

The FDA proposal would ban the manufacturing and sale of menthols but would not police smokers themselves. The rule explicitly states, “This regulation does not include a prohibition on individual consumer possession or use, and FDA cannot and will not enforce against individual consumers for possession or use of menthol cigaret