FDA to face federal hearing in lawsuit over delay on menthol cigarette ban

Nov. 18 (UPI) -- Attorneys for the Food and Drug Administration will appear in court Thursday, where anti-tobacco groups are accusing the agency of failing to implement a recent ban on menthol cigarettes -- which are blamed for untold deaths each year, and encouraging people to start smoking.

The federal court hearing highlights a conflict between FDA efforts to ban menthol-flavored cigarettes and regulating the sale of flavored electronic cigarettes.

A 2013 FDA report found that menthol cigarettes make it easier to start smoking and harder to quit, after the flavor was exempted from a 2009 congressional ban on all flavored cigarettes.

The American Medical Association, African American Tobacco Control Leadership Council and Action on Smoking and Health sued the agency last year, urging it to take action based on the findings of the FDA report. The suit noted that tobacco companies "for generations" have marketed menthol cigarettes to Black Americans.

Seven months ago, the FDA proposed a ban on the sale of menthol cigarettes and cigars by April 2022. In August, the agency also banned more than 55,000 flavored e-cigarette products after requiring last year that all vaping companies must get regulatory approval before their products go to market.

However, the FDA did not take any action against flavored e-cigarette products.

Research into menthol cigarettes has previously indicated that they make it easier for people to start smoking, and harder to quit. File Photo by John Angelillo

Last month, the agency permitted the marketing of e-cigarette products, including R.J. Reynolds Vapor Companies' Vuse Solo e-cigarette and three tobacco-flavored e-liquid pods, but said it was "still evaluating" the company's application for menthol-flavored products.

"The FDA has put itself in a position of having sort of a tension between its action on menthol cigarettes and other kinds of flavored tobacco products -- most specifically e-cigarettes," Joelle Lester, director of commercial tobacco control programs at the Public Health Law Center in St. Paul, Minn., told Politico.

The FDA told Politico that it's developing a menthol policy and plans to complete its review of remaining e-cigarettes.

"Our commitment to ban menthol as a characterizing flavor in cigarettes and ban all characterizing flavors in cigars is at the top of [the Biden] administration's tobacco regulatory priorities," an FDA spokesperson said.

"At the same time, our commitment to addressing youth use of e-cigarettes and other electronic nicotine delivery systems is unwavering."

The lawsuit comes as cigarette sales increased in the United States during the COVID-19 pandemic, exceeding researchers' estimates by close to 15%.

A study released last month found that a ban on menthol cigarettes in Canada led to a reduction of overall cigarette sales in the country by just under 5%.