The path forward to ban menthol-flavored cigarettes is narrowing.
The outgoing Biden administration has still not finalized the rule banning the sale of menthols, and public health advocates fear they will hit yet another dead end with Donald Trump’s administration.
Joe Biden missed a third self-imposed deadline in April last year to make the move, with the Department of Health and Human Services stating that it needed to have “more conversations” with stakeholders over “significantly more time” before instituting any such rule. Almost immediately after, public health organizations such as the African American Tobacco Control Leadership Council united behind a legal fight with the White House.
The government has opposed the lawsuit, filing several motions to dismiss it — the most recent of which will be argued next Thursday at the U.S. District Court in the Northern District of California.
“Not only did they drag their feet for the last 15 years, now that we’re close to pushing them to do it, they’re moving to dismiss the request to move forward,” Phillip Gardiner, the founding member of the AATCLC, told NOTUS.
Government attorneys will argue that not only is the U.S. Food and Drug Administration not required to finalize a proposed rule, but also that the coalition of health organizations does not have standing to pursue the lawsuit. The Biden administration is citing the Supreme Court’s opinion in FDA v. Alliance for Hippocratic Medicine, in which conservative groups challenged the approval of a drug used in medical abortions.
“FDA has discretion under the [Family Smoking Prevention and Tobacco Control] Act to issue a final rule, continue the rulemaking proceeding, or terminate the rulemaking proceeding,” the administration’s attorneys wrote.
The AATCLC is calling for all of its partnering organizations and proponents of a ban to gather outside the courthouse and rally on the day of the hearing, before packing the Oakland courtroom in a public display of support for the cause. The best-case scenario, Gardiner said, would be for the court to say the lawsuit has merit and allow it to move on to the next stage legally.
He and Christopher Leung, the lawyer representing the health organizations, do not expect the case to be dismissed.
“In terms of where we see this case going, we expect to have an opportunity to talk to the court about the importance of what we’re seeking,” Leung told NOTUS. “As a result of defense inaction, public health is being harmed.”
The number of smokers who use menthol flavors has only grown since the FDA’s initial research in 2011, advocates said in their complaint. And the percentage of African American smokers who use menthols has increased from 70% to 85%. A report by the Federal Trade Commission issued in 2023 found that the market share of menthol cigarettes is at around 36%.
Gardiner has lost hope that Biden will have a last-minute change of heart. He predicts an incoming Trump administration will pose even more roadblocks.
Despite going forward with a limited ban on some flavored electronic cigarettes during his first term, Trump has changed his posture on the matter, emphasizing in 2024 that he would “save vaping.” He reportedly changed his position amid political pressure that it could impact his 2020 reelection campaign.
Tobacco giants have been cozying up to Trump. A subsidiary of Reynolds American was the top corporate donor to the MAGA Inc. super PAC in the 2024 election, and executives at Reynolds have reportedly held meetings on multiple occasions with Trump in 2023 and 2024, emphasizing their concerns about a menthol ban. Conservative and Republican-aligned organizations also ran ads during the 2024 campaign season, specifically attacking Kamala Harris for the administration’s proposal to ban menthol.
The Trump transition team did not respond to a request for comment.
“It’s not like, ‘Oh boy, Trump is going to be in office. He’s going to help out with what we’re doing to save Black lives,’” Gardiner told NOTUS. “I don’t see that happening at all. I think it’s still a fight moving forward, and it will intensify.”
“Frankly, even if [the court] were to dismiss it now — and we don’t think they would — we would refile again and continue on this fight at the federal level,” Gardiner added.
Leung believes the argument for banning menthols is wide-ranging enough to be reasonable under anyone’s leadership.
“We think that public health is a concern that crosses all political boundaries and concerns everybody,” Leung said. “While certainly the target of menthol advertising has been largely towards African American communities, it’s all impacting kids, women and other minority groups. Whether it’s a Democratic or Republican administration, we think it makes sense to remove menthol from cigarettes.”
Illinois Rep. Robin Kelly, who led a group of 32 congressional lawmakers in urging the FDA to ban tobacco products with a menthol flavor in 2023, said it’ll be a worthwhile challenge to change minds on the issue in the new Congress.
“I don’t know that we’ll ever be able to get the holdouts on this,” Kelly told NOTUS. “But, no matter whose administration is in charge, we’re still going to push for this. I’m still meeting with advocates to see what our strategy will be. Good things sometimes take a little bit to get done.”
There’s plenty of opposition to a menthol ban in Congress. A coalition of Republican lawmakers has argued a ban would make way for drug cartels. Not all Democrats agree with a ban either.
“Given the criminal justice environment that Black communities face, knowing sort of the socioeconomic dynamics of that as well, I see that ban as being a threat, to a certain extent, to those who are addicted to menthol cigarettes,” said Rep. Yvette Clarke, who is newly elected to chair the Congressional Black Caucus. “They’re saying that the ban is on the manufacturing side, but in some form or fashion, I can see law enforcement exploiting interactions with the public, particularly the Black public, as a means of harassment and other circumstances. That’s my main objection.”
Ultimately, the decision will soon be in Trump’s hands. Those in support of a ban say that will mean fighting against the same powerful forces that have stalled the decision for decades.
“Trump’s policy is probably going to be about whoever has the most money because he’s transactional,” Rep. Gregory Meeks said. “If tobacco leaders keep spending time with him on Mar-a-Lago, paying him money, then maybe he’ll be with them.”
—
Calen Razor is a NOTUS reporter and an Allbritton Journalism Institute fellow.