Public health officials, including those advocating for Black lives, have lost patience with the Biden administration over its reluctance to ban menthol cigarettes, and they are reigniting a legal battle with the White House over it.
“It was prime time to refile this lawsuit,” said Kelsey Romeo-Stuppy, managing attorney at Action on Smoking & Health. “Part of the reason we dropped our first one is because we thought [the administration] was moving forward. But they exceeded several deadlines, and the timeline felt too excessive.”
ASH is one of three co-plaintiffs who filed a second lawsuit in April against the U.S. Food and Drug Administration in the northern district of California, arguing that the administration is violating its own guidelines by delaying a ban. They were joined by the African American Tobacco Control Leadership Council and the National Medical Association. The lawsuit came days after the Biden administration missed its third self-imposed deadline to finalize the rule banning tobacco products with a menthol flavor.
Black public health advocates have called for a menthol ban for over two decades. Their patience has run dry with the Biden administration, which said last month that it needed to have “more conversations” with stakeholders over “significantly more time” before instituting any such rule, in a statement from Health and Human Services Secretary Xavier Becerra.
That statement is “just a whole lot of rhetoric,” Phillip Gardiner, the founding member of the AATCLC, told NOTUS. “They’ve met with the tobacco industry; they’ve met with all these public health groups that I work with.There’s no more people that need to be talked to. They’re just dragging their feet.”
The debate over the proposed menthol ban has resulted in strange political alliances. Groups supporting the ban told NOTUS previously that the White House is worried about losing support in an election year, citing a poll funded by tobacco giant Altria Group and conducted by Democratic pollster Cornell Belcher that found “core” Biden voters in opposition to it. Groups like the National Organization of Black Law Enforcement and Al Sharpton’s National Action Network, as well as several members of the Congressional Black Caucus, have also come out against it.
“The tobacco industry has made it so that the administration will be presumed to be racist for banning menthol cigarettes,” Romeo-Stuppy said. “The tobacco industry has been paying Black leaders for a long time to say that, and I think the Biden administration is afraid of seeming racist, particularly coming up on an election.”
Advocates for the ban argue that there is no scientific explanation for prolonging the decision. Under the Tobacco Control Act, the FDA is supposed to periodically evaluate the science that’s out there and determine whether or not the flavor ban needs to be changed.
The joint lawsuit states that the FDA, by means of its own peer-reviewed research, has known since 2011 that removing menthol cigarettes from the market would benefit public health, yet has not acted. It also states that the health toll has only increased since then; the complaint notes that between 2009 and 2020, 7 million more people became menthol smokers, and the percentage of African American smokers who use menthols has risen from 70% to 85%.
“We’re basically saying to the judge, ‘Give us something here,’” said Christopher Leung, the attorney representing the public health organizations. “We brought the first lawsuit in 2020 and voluntarily dismissed it. Look at all these instances since then where they can’t get their act together.”
The FDA has 60 days to respond to the complaint, Leung says. However, based on informal conversations with the Department of Justice, Leung said he expects the administration to move to dismiss the claims.
The White House declined a request for comment on the litigation.
Meanwhile, some states and localities have begun taking action while a federal rule is in limbo. In June 2020, Massachusetts became the first state to ban all flavored tobacco products, including menthol. A similar law became effective in California in 2022 and was upheld by the U.S. Supreme Court this year in January against challengers in the tobacco industry. The Campaign for Tobacco-Free Kids also found that localities in eight states plus D.C. have already prohibited the sale of menthol-flavored tobacco products.
“We want protection for people as quickly as we can,” Romeo-Stuppy said. “So we’re really encouraging states and localities to pass menthol bans locally as quickly and as productively as possible because we don’t think we can wait on the federal government.”
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Calen Razor is a NOTUS reporter and an Allbritton Journalism Institute fellow.