Bill Godshall – FDA and Menthol Cigarette Ban: Tobacco Regulation and Control ?

FDA Tobacco Control still out of control

If nothing else, the menthol cigarette controversy in the US has widened the gap (created by tobacco harm reduction) between those whose goal is to responsibly regulate tobacco products to reduce tobacco morbidity/mortality and those whose goal is to ban the sale of whatever tobacco/nicotine product they consider politically attainable (e.g. snus, e-cigarettes, dissolvables, other flavored tobacco  products) if they repeatedly misrepresent its health risks and/or marketing.

On Friday, CTFK, ACS, AHA, ALA urged the FDA to ban menthol cigarettes.  Meanwhile, tobacco industry stock values increased, especially for Lorillard, maker of Newport, the nation’s largest selling menthol cigarette brand.

Unfortunately, the TPSAC‘s (FDA’s Tobacco Products Scientific Advisory Committee) recommendation that “removal of menthol cigarettes from the marketplace would benefit public health in the United States” addressed a vastly different question than the nine questions the committee was asked to address (all of which dealt with the public health impact of menthol IN cigarettes, not the potential public health impact of removing menthol FROM cigarettes).

In fact, the most important paragraph in the menthol report (on page 210) states:

“TPSAC acknowledges that the potential for contraband menthol cigarettes exists, should FDA choose to implement a ban or take some other policy action that restricts availability of menthol cigarettes. Consistent with the requirements of the Act, TPSAC recommends that FDA consult with appropriate experts and carry out relevant analyses depending on the actions taken in response to this report from TPSAC. At present, TPSAC is not constituted to carry out such analyses, and lacking knowledge of FDA’s intent on receipt of this report, it concluded that FDA would need to assess the potential for contraband menthol cigarettes as required by the Act.”

That paragraph not only conflicts with the TPSAC’s recommendation that “removal of menthol cigarettes from the marketplace would benefit public health in the United States“, but it also acknowledges that the TPSAC and its report didn’t adequately consider the public health (or other) impacts of removing menthol cigarettes from the legal market.  The report devoted less than two of its 231 pages to contraband menthol cigarettes, which would replace some/much/most of the $25 billion per year menthol cigarette industry in the US (if the FDA banned the products).

In contrast, the new US GAO report on  Illicit Tobacco provides far more details about the huge and growing illicit cigarette market in the US, which an FDA menthol ban would quickly double, triple, quadruple or more.  Although the TPSAC report cited an industry funded study estimating that black market menthol cigarettes would cost more than currently taxed menthol cigarettes, all other illicit cigarettes sold in the US are far less expensive than currently taxed legal cigarettes. If black market menthol cigarettes are sold at a lower price than currently taxed menthol cigarettes, a menthol cigarette ban could result in increased use of menthol cigarettes.

The TPSAC report also failed to consider a menthol cigarette ban’s public health impact of the loss of up to $16 billion that federal, state and local governments receive annually in tax revenue and settlement payments from legal sales of menthol cigarettes. Do members of the TPSAC (and CTFK, ACS, AHA, ALA) truly believe that public health would benefit by reducing funding for the State Children’s Health Insurance Program (SCHIP), and by reducing funding for state/local smoking prevention/cessation programs and other health and healthcare programs?

A ban on menthol cigarettes would create three basic cigarette options for about 19 million smokers (i.e. switching to non-menthol cigarettes, buying untaxed black market menthol cigarettes and/or quitting smoking), but nobody knows what percentages of menthol smokers would choose which of those options.  Clearly, fewer menthol smokers would switch to taxed non-menthol cigarettes or would quit smoking if a black market for menthol cigarettes proliferates, especially if non-taxed black market menthol cigarettes are less expensive than taxed non-menthol cigarettes.

I’ll be shocked if the FDA proposes a ban on menthol cigarettes, and its clear to me that banning menthol cigarettes would NOT benefit public health or civil society, but would primarily benefit organized crime. 

Although alcohol and marijuana prohibition advocates similarly claimed that banning those products would protect public health, history has documented how those prohibition laws sharply increased organized crime, violence, government spending and corruption, while having very little or no discernable impact on public health.

The FDA and its TPSAC have squandered a year (studying menthol cigarettes) that could have been spent studying and promulgating regulations that would truly reduce tobacco morbidity and mortality, like:

• acknowledging that dissolvables and other smokeless tobacco products are far less hazardous alternatives to cigarettes,

• acknowledging that e-cigarettes are tobacco products and are far less hazardous alternatives to cigarettes, and

• eliminating the misleading and inaccurate warnings on smokeless tobacco products.

Sincerely,

Bill Godshall
Executive Director

Smokefree Pennsylvania
1926 Monongahela Avenue
Pittsburgh, PA 15218
412-351-5880
FAX 412-351-5881
smokefree@compuserve.com