FDA Faces Lawsuit Regarding Menthol Ban After Biden Admin Misses Deadline

(Photo by Mario Tama/Getty Images)

OAN’s Brooke Mallory
6:00 PM – Tuesday, April 2, 2024

Public health groups are furious that the White House’s failure to publish a regulation prohibiting menthol cigarettes will cause the policy to be perpetually postponed due to election-year politics.


Three anti-tobacco public health organizations filed a lawsuit against the Food and Drug Administration (FDA) and its parent organization, the Department of Health and Human Services (DHS), on Tuesday in an attempt to pressure the government to act quickly.

“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 groups said in the complaint.

The rule banning menthol was first intended to be published by health officials in August of last year. However, the Biden administration postponed the ban until March at the end of last year due to lobbying from opponents, which included the tobacco industry. It appeared that the White House was concerned that the action would “infuriate Black smokers and jeopardize President Biden’s prospects of being reelected,” an insider told the press.

“There is absolutely no reason to further delay a policy that has been studied for more than 12 years, is supported by overwhelming scientific evidence, and will save hundreds of thousands of lives. Make no mistake: delays cost lives, especially Black lives,” stated Yolonda Richardson, president / CEO of the Campaign for Tobacco-Free Kids, in a joint statement with Derrick Johnson, president and CEO of the NAACP.

Proponents of public health assert that the prohibition would bolster the administration’s dedication to health justice and Biden’s Cancer Moonshot project.

“I think that the president is walking backwards from his promise to always follow the science,” said Erika Sward, assistant VP at the National Lung Association. “I cannot think of a public health issue or a health issue that has more repercussions and more significance than tobacco.” 

Since the deadline in March was regulatory rather than legislative or legal, analysts say there was not much pressure on the administration to take immediate action.

One of the organizations involved in the case, the African American Tobacco Control Leadership, whose co-chair is Carol McGruder, stated that the lawsuit’s goal is to inform the government that there are other voices than the tobacco giants.

“We want the Biden administration to know, we want our people to know, that we are continuing to move forward. We’re here. We’re not going anywhere, and we will be vigilant to keep it moving until we get a rule passed,” McGruder said.  

As part of the 2009 law granting the FDA regulatory control over tobacco products, Congress outlawed flavored cigarettes. However, menthol was left unaffected due to a loophole. The FDA was left to decide what to do next.

In 2020, the FDA was sued by the same three groups, who claimed that the agency had “unreasonably delayed” action on a ban. The lawsuit expressly requested that the FDA be forced to consider whether to include menthol in the list of flavors that are forbidden by the court.

When the FDA ultimately issued a regulation in 2022, the groups voluntarily dropped the lawsuit. The FDA calculated that a menthol ban might avert 300,000 to 650,000 smoking deaths over several decades, “most of them among Black Americans,” they claimed.

“It had been 12 years since the FDA was supposed to take action on menthol. So we were cognizant that just because the FDA said they do it … that wouldn’t necessarily mean we would get a rule that could actually ban menthol from the market. So, we left it in such a way that we could refile a new lawsuit on the same lines,” Chris Bostic, policy director for Action on Smoking and Health (ASH) said in a statement.

However, the March deadline passed, and the groups decided that they needed to take matters into their own hands.

“We’re extremely disappointed to be forced to file this second lawsuit against the FDA in support of protecting Americans from menthol cigarettes,” ASH Executive Director Laurent Huber stated. “The FDA’s own research confirms that a menthol ban would save lives; there is no scientific reason to delay finalizing this rule.” 

Meanwhile, opponents of the ban contend that it will increase the market of unlicensed, illegal menthol cigarettes and result in increased overpolicing in communities of color, akin to the 1980s and 1990s war on drugs campaign.

However, the law would not apply to people who own or consume menthol cigarettes—rather, it would only cover businesses that produce, market, or sell the product.

“It is very rare that the president on his own, without Congress, without having to maneuver through any sort of legislative process, can do something that’s going to save hundreds of thousands of lives and prevent another generation from becoming addicted to tobacco products. But that’s where we are,” a spokesperson for the spokesperson for the National Lung Association said.

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