- The Washington Times - Thursday, July 7, 2022

The Food and Drug Administration has received more than 200,000 comments about two proposed rules that would end the sale of menthol cigarettes and flavored cigars, with many people writing to urge the government to mind its own business.

The FDA’s Center for Tobacco Products reported receiving thousands of comments from individuals, businesses and groups. Many wrote to oppose the ban, including business owners who said it would force them to cut jobs.

Other messages supported the proposed ban and said removing the products would improve health and save lives.

Thousands of letters submitted online came from people who smoke menthol cigarettes and say taking them off store shelves is an unfair attack on personal liberty.

“I feel it should be the individual’s right to choose in this situation,” Chris Heilman, a Florida resident and menthol smoker in his 40s, wrote to the FDA. “I feel like we are potentially losing yet another freedom in this country in the name of what the government thinks is best.”

Some follow a form-letter format, citing a low rate of smoking among young people, and are interwoven with personal views.

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Nikki Jones wrote to the FDA to ask, “Why criminalize something that really had become a part of people’s daily lives?”

Alissa Thomas of Tennessee said she opposes the flavored cigar ban partly because it would disproportionately affect Black people, who she said buy the product more frequently. Ms. Thomas said the ban would create a black market and more crime problems. 

“Did we learn nothing from Prohibition?” Ms. Thomas wrote to the FDA. “The government was bound and determined to force its citizens to become more productive. Not only did it backfire in a huge way, but it also ushered in the crime bosses like Al Capone and [Bugs] Moran. It took the Valentine’s Day Massacre to make the government realize it was a bad law. In the meantime, many people were poisoned by bathtub gin.”

The FDA has not made a final decision on the two proposals, a spokeswoman told The Washington Times.

“Proposed rules are just that — a proposal,” the spokeswoman said. “A rule only has the force and effect of law if it becomes final and effective.”

A final decision won’t be made immediately. 

The FDA, which intended to end the comment period for the proposed ban on July 5, has extended it until Aug. 2 because of public demand for additional time, the spokeswoman said. FDA officials then will read all of the comments to help them determine whether to go forward with the proposals. 

“I think they’ve had a lot of interest in this topic,” said Maritza Perez, national affairs director for the Drug Policy Alliance, which opposes the ban. “People are paying attention and I think they want to hear from everybody. This is a very controversial proposal, with very strong opinions on both sides.”

The FDA proposed prohibiting the sale of menthol cigarettes and flavored cigars in April, calling a ban on the two products “an important step to advance health equity by significantly reducing tobacco-related health disparities.” 

The agency said a menthol ban would prevent up to 654,000 cigarette-related deaths over the next four decades and would benefit young people, Black people and other racial and ethnic groups who have “particularly high rates” of smoking menthol cigarettes.

The NAACP supports the ban. It argues that tobacco companies have targeted Black people with menthol cigarette advertising for years.

“For decades, the tobacco industry has been targeting African Americans and have contributed to the skyrocketing rates of heart disease, stroke and cancer across our community,” the NAACP said in a statement. “The tobacco industry is on a narrow quest for profit, and they have been killing us along the way.”

The most popular menthol cigarette is Newport, produced by R.J. Reynolds, which asked the White House to delay the proposed rule in a March letter obtained by The New York Times. The letter said the ban would disproportionately affect “communities of color.”

An R.J. Reynolds spokesperson did not respond to a request for a comment on the proposed ban. 

The FDA proposal to eliminate flavored cigars is linked to studies that show more than half of all youth cigar smokers report using flavored cigars. Cigar smoking is attributed to 9,000 premature deaths annually.

Some commenters offered compromise solutions for the FDA to consider.

“I hope the FDA will do the right thing and approve the ban on menthol in cigarettes,” Martha Donnelly of New York wrote to the FDA. “Too many people die from smoking-related causes and a significant percentage of them use menthol. Allowing these smokers the option of a very low nicotine menthol cigarette seems to be a viable compromise which will likely enhance the chance of quitting. And may well quiet the voices of those in full opposition to the ban. Seems like a win-win!”

Opponents of the ban provided statistics in comments to the FDA, citing low smoking rates among young people. Menthol smoking by those younger than 21 is below 1% and has dropped thanks to prevention programs and the vigilance of store owners, who require proof of age to purchase tobacco products.

“Our company prohibits the sale of cigarettes to minors through employee training and age verification technology,” Steve Lapke wrote to the FDA. “As a matter of fact, signs on our front doors prevent anyone under the age of 18 from entering our three liquor/tobacco stores.”

Mr. Lapke is vice president of a company that owns and operates a Shell gas station and three liquor and tobacco stores in northern Kentucky.

He told the FDA that menthol cigarettes represent about 14% of all nonfuel sales from the company’s four stores and that removing menthol products from the shelves would force the company to fire people. 

“The FDA’s proposed menthol cigarette ban would reduce our company’s sales so tremendously that we would be forced to downsize some of our current staff,” Mr. Lapke wrote. 

Opponents of the ban warned that it would create an illicit market for cigarettes that would disproportionately put Black people in danger. They cited the 2014 death of Eric Garner, who was selling loose cigarettes illegally on New York City streets before he was put in a police chokehold.

Law enforcement groups warned the FDA that the ban would cause a spike in crime and overburden strained police departments. 

“History has taught us that prohibitions do not work,” Justin Thornton, executive director of the Arizona Fraternal Order of Police, Arizona Labor Council, wrote to the FDA. “Prohibitions will increase criminal activity in an area where Arizona already struggles (Arizona ranks 4th in the US for cigarette smuggling). Banning a product that approximately 200,000 adults utilize will increase the illegal tobacco market. Adding an additional burden to police officers who are already suffering due to loss of staff.”

If the FDA moves forward with its proposal, it would implement a ban on the two products one year after finalizing the rule.

“After the comment period closes, the Center for Tobacco Products will review all submitted public comments and decide what, if any, changes should be made to the proposed rule, as well as if any further action is needed,” the FDA spokeswoman said. “Based on the comments, CTP may decide to end the rule-making process, to issue a new proposed rule, or to issue a final rule.”

• Susan Ferrechio can be reached at sferrechio@washingtontimes.com.

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