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The Commercial Determinants of Population Health: The Fight Over Flavored Tobacco

Posted on April 28, 2022

By Dean Ana V. Diez Roux, MD, PhD, MPH

In these times of so many compounded threats to public health it is easy to lose sight of small yet potentially significant victories. This past week in a development that received some media attention (for example it was featured on the front page of the New York Times) but that was easy to miss given everything else that is going in in our world, the FDA issued a long awaited proposal to ban menthol cigarettes and flavored cigars. The proposal still needs to go through public comment, if approved will predictably face significant opposition from Big Tobacco, and could take years to implement.

Public health advocates have long argued that menthol cigarettes, which account for over a third of the US cigarette market, promote smoking especially among youth and significantly contribute to smoking among Black people who smoke. Indeed, the tobacco industry has long aggressively and deliberately marketed menthol cigarettes to Black communities, and today about 85% of Black smokers smoke menthol cigarettes. “The proposed rules would help prevent children from becoming the next generation of smokers and help adult smokers quit,” said Health and Human Services Secretary Xavier Becerra. “Additionally, the proposed rules represent an important step to advance health equity by significantly reducing tobacco-related health disparities.” Of note, the impetus for issuing the proposed rule was generated in part by a lawsuit filed by the African American Tobacco Control Leadership Council (AATCLC), Action of Smoking and Health, the American Medical Association, and the National Medical Association back in June of 2020. The lawsuit had asserted that the FDA had failed to act on menthol cigarettes contrary to the duties and mandate imposed by the 2009 Family Smoking Prevention and Tobacco Control Act.

At first glance it may appear that banning flavor additives might not necessarily lead to less smoking. However it is well established that by reducing the irritation and harshness of smoking, menthol makes smoking easier and more pleasant. It also interacts with nicotine, increasing its addictive effects. Thus menthol cigarettes both promote use and make it more difficult for users to quit. Flavor additives are smart strategy (among many others) developed by the tobacco industry to promote cigarette use, nicotine addiction, and the sale of its products.

As noted by the FDA itself, a ban on flavored cigarettes must be accompanied by greater support and resources for smokers to quit, especially for communities who may not have access to these services and who rely on smoking as a coping mechanism to survive the many stressors they encounter in their lives. The proposed rules will not penalize consumption but rather focus on supply i.e., manufacturers, distributors, wholesalers, importers, and retailers. Most importantly the new rules must be implemented in ways that do not unintentionally reinforce racist surveillance and police activity or racial profiling.

Flavored cigarettes (except menthol) were nationally banned in 2009 as part of the Family Smoking Prevention and Tobacco Control Act. Several states and many municipalities have since then passed their own additional restrictions on flavored tobacco products and e-cigarettes. Our own city of Philadelphia enacted an ordinance banning the sale of flavored tobacco products in 2019. The ordinance was motivated by local data showing the impact of flavored tobacco products on youth smoking and on minoritized and low income populations. Sadly, in a blow to public health, Philadelphia was recently forced to stop enforcement of the ordinance and void all related regulations. The city was, no surprise, sued by the Cigar Association of America Inc. and several tobacco companies who argued that Pennsylvania state law pre-empted the municipal ordinance.

Many public health problems are multifaceted and difficult to address. Smoking is certainly one of them. And yet banning a strategy designed to promote addiction to a harmful substance seems like an obvious, and in the grand scheme of things, simple action, especially when it is so well supported by data. As a Philadelphia Board of Health member I was shocked (although not surprised) to see how easily the City’s best intentions and justifiable actions to protect health were swept aside by commercial interests. This example illustrates yet again what we are up against in promoting the health of the public.

The elimination of menthol flavored cigarettes would be a huge blow to tobacco companies so it won’t be easy. “This is a giant step forward” in decreasing health disparities, said Carol McGruder, co-chair of the African American Tobacco Control Leadership Council. “When finalized, we believe this will be the single most significant action taken by FDA in its almost 13-year history of regulating tobacco products,” said Harold Wimmer, CEO of the American Lung Association. If you would like to comment on the FDAs new proposed ruling you will be able to do so beginning May 4 and through July 5, 2022.