Opposition from prominent Black and civil rights groups is threatening to permanently derail Biden administration efforts to ban menthol cigarettes.
The ban has also pitted organizations that are often allies, like the NAACP and the Rev. Al Sharpton's National Action Network (NAN), against each other.
The tobacco industry has long been accused of targeting the Black community, especially with menthol products, while simultaneously courting and funding Black-led organizations, politicians and civil rights leaders in an effort to neutralize criticism.
Menthol is a lucrative industry. Menthol-flavored cigarettes accounted for more than a third of all cigarette sales in the U.S. in 2021, according to the Centers for Disease Control and Prevention.
“The fact that 85 percent of Black people who smoke cigarettes smoke menthol cigarettes, it's not a mistake. It's not happenstance. It's not culture. It's not a preference for the taste. It is a concerted marketing effort by industry that infiltrated these communities to peddle these drugs, and they've done so successfully,” said Mignonne Guy, an associate professor and former chair of the Department of African American Studies at Virginia Commonwealth University.
The political tide has been shifting in recent years, and a majority of the Congressional Black Caucus supports Biden's proposal. But the White House earlier this month delayed the plan until at least March after critics argued the ban would unfairly target Black smokers and hurt the president's re-election chances.
The delay came about two weeks after top administration officials met with tobacco industry lobbyists, industry-adjacent organizations, as well as high-profile civil rights attorney Ben Crump and a top executive from Sharpton’s NAN.
The move dismayed public health groups, who say it's a sign that the industry’s influence, especially among certain Black leaders, remains strong.
“There’s a whole plethora of people — it's public health professionals, it's lobbyists, members of Congress, you know, everybody they need to line up so that whenever the issue of the regulation of menthol comes up, they've got an army of prepaid people who can step up to the plate and make the case about why menthol should be exceptional,” said Yolanda Richardson, president and CEO of the Campaign for Tobacco-Free Kids.
Richardson recently convened a meeting between administration officials and prominent civil rights and public health leaders to press the White House to release the rule and stop what she decried as foot-dragging. She and the other groups were incensed over the level of access granted to the industry lobbyists so soon before the ban was delayed.
The more recent meeting included members of the NAACP, African American Tobacco Control Leadership Council, the National Council of Negro Women, the National Coalition on Black Civic Participation and other public health representatives.
“There'll always be these kinds of red herring issues,” Richardson said. “For one minute it was over-policing, now we're hearing the issue is that Black men are going to be upset because they're not going to have their menthol cigarettes. So, there's always a way for the industry to distort the facts, and there's always a way for them to kick up sand in the gears.”
A potential ban on menthol cigarettes has been discussed across multiple administrations for more than a decade. Even though the Food and Drug Administration (FDA) finally proposed one in 2022, the target date for the final rule has been slipping for months.
The rule was initially slated for August release but then wasn’t sent to the White House for final regulatory review until October, with the aim of releasing it by the end of the year. Now it’ll be March — if the rule is released at all.
"It's hard to be surprised by another delay. But I certainly was surprised that here the delay was following so close on the heels of tobacco industry and industry-funded groups meeting with OMB [the White House Office of Management and Budget],” said Micah Berman, a professor at Ohio State University’s College of Public Health.
“And then having the delay announced right after that — the fact that they still apparently have that much direct influence in 2023 is a bit shocking.”
Opponents of the ban have argued it will expand an illicit, unregulated marketplace of menthol cigarettes and will lead to more over-policing in communities of color, similar to the war on drugs campaign of the 1980s and 1990s.
Sharpton’s National Action Network has been among the most vocal in arguing about the consequences of a ban on Black communities, often invoking the name of Eric Garner, who was killed by police in 2014 after being confronted for selling loose cigarettes.
NAN has opposed menthol bans across the country, holding town halls at prominent Black churches to talk about how menthol bans criminalize the Black community.
“The National Action Network has followed the lead of Gwen Carr, the mother of Eric Garner, who was killed by police during a cigarette enforcement stop. She, Attorney Ben Crump, and others have raised concerns that this ban will lead to the unintended consequences for Black people selling loose cigarettes,” Ebonie Riley, senior vice president of the National Action Network, said in a statement to The Hill.
Riley was among the individuals, including former lawmakers, who met with administration officials in late November to push against the ban.
Public health advocates have pointed to the longstanding ties Sharpton has with RJ Reynolds, the manufacturer of Newport menthol cigarettes.
Sharpton, who publicly fought against New York City’s menthol ban in 2019, told the New York Times that Reynolds had made contributions to his group for two decades, and he did not dispute that the company regularly bought tables for as much as $15,000 at its events.
Riley said Sharpton himself has not made any public comments or lobbied on the federal proposal. She wouldn't say whether the group still receives funding from tobacco companies.
Other groups, including the ACLU and the National Organization of Black Law Enforcement Executives (NOBLE), helped to lobby the White House against the ban, focusing on the law enforcement aspect. NOBLE lists the cigarette company Altria, which produces Virginia Slims, as one of its sponsors. The ACLU has opposed efforts at tobacco regulation since the 1990s.
For supporters of the ban, the arguments against it are cynical distractions.
Biden’s proposed policy would only apply to companies that manufacture, distribute or sell menthol cigarettes, not individuals who possess or use them. Nobody has been arrested for smoking menthols in Massachusetts and California, the only two states that have banned them.
The message about losing Black voters reportedly came during recent private phone calls with administration officials, following polls showing Biden has been losing support among that key demographic.
NAACP President and CEO Derrick Johnson said the political risk wasn’t real.
“We are the largest civil rights organization in the Black community in 47 states across the country,” he said. “No one has raised this as a political issue … outside of a manufactured argument we began to hear about a week and a half [before the delay].”
Johnson said the Black community is concerned about “the price of gas, bread, the future of their children, the safety of their communities. Those are the political questions happening on the ground.”
Congress banned flavored cigarettes as part of the 2009 law giving the FDA authority to regulate tobacco products, but a loophole exempted menthol. It was left up to the FDA to make a further decision.
The Obama administration solicited comments for potential regulation of menthol cigarettes in 2013, but it never proposed a rule. Then in 2018, the Trump administration revisited the issue.
But Trump’s FDA also failed to issue a formal rule. So when the Biden administration’s April 2022 proposals for a ban on menthol and flavored cigars were released, they represented a significant step forward.
Advocacy groups say tens of thousands of Black lives could be saved; they are planning a “menthol funeral” on Jan. 18 in Washington to memorialize the 45,000 Black Americans who die from tobacco-related illness each year and to encourage the White House to act.
But now the delay has extended into an election year, and advocates worry that electoral concerns will win out over public health.
“Unfortunately, that’s what Biden himself seems to be most concerned about and not concerned about saving Black lives,” said Phillip Gardiner, co-chair of the African American Tobacco Control Leadership Council.
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