From the Chief Medical Officer: How State Health Officials Can Make a Stand Against Menthol

September 19, 2023 | Marcus Plescia

Someone holding a handful of combustible cigarettes in one hand and a single e-cigarette pen in the otherWhen I started my public health career in North Carolina, I had limited expectations about what a health agency could accomplish in tobacco control. As a practicing family physician, I have seen tobacco tragically impact the lives of many of my patients, but I also knew that tobacco farming and manufacturing played a profound financial, historical, and cultural role in this state. Several communities are named after tobacco products and some of the state’s most influential families made their fortunes in the tobacco industry.

Thanks to Sally Herndon, Jim Martin, and their team with the North Carolina Department of Health and Human Services’ tobacco control branch, I found we could still make progress through incremental changes, appeals to science, and partnership with thought leaders. As a result, tobacco control has been a public health success in states across the nation. As ever, there is still work to be done.

Flavors and Federal Discourse

One of the greatest current challenges for public health is the proliferation of tobacco flavors, particularly in e-cigarettes. Flavors play a key role in the prevalence of tobacco products because of their appeal to young tobacco users, and this is especially the case with menthol flavored cigarettes. Since menthol makes smoke feel less harsh and easier to inhale, it is one of the most pervasive and insidious flavors available.

Artificial and natural flavors have long been a challenge for tobacco control efforts. And while some progress has been made in regulating these additives, menthol has been particularly challenging. The 2009 Family Smoking and Tobacco Control Act (TCA) made historic progress by prohibiting artificial or natural flavors in combustible cigarettes but by excluding menthol, it continues to be a popular additive in cigarettes.

Big tobacco’s direct marketing of menthol cigarettes and other flavored tobacco products to minority groups—particularly Black Americans—and youth is well documented and has caused a higher incidence of tobacco-related disease, disability, and death in these groups. Other characterizing flavors (i.e., additives that impart distinctive and appealing tastes or aromas making the products more palatable) have now become widely used in e-cigarettes and other emerging nicotine products. For example, inexpensive cigars are sold in over 250 kid-friendly flavors, an increase of more than 50% since 2008.

In 2022 FDA made significant progress to address these issues by proposing rules that would prohibit menthol cigarettes and flavored cigars, but the final rule has yet to be announced. Once the final rule is published, it is widely anticipated the industry will mount legal challenges to the new regulation, which may delay its implementation. As such, it is critical for state and local leaders to model the way by implementing flavor ban policies in their communities.

State Policy Overview

As of this month, 23 states and two island jurisdictions introduced 40 bills prohibiting the sale of characterizing flavors in tobacco products. More than half of these bills proposed flavor bans, including menthol, in the drafted language.

While many states recognize the importance of policies prohibiting the sale of menthol and other flavored tobacco products, others may impede progress by enacting legislation preempting local tobacco flavor bans. Preemption can be difficult to overturn once in place, so it is very encouraging that some states have been successful in removing preemption laws and giving power back to the local communities.

This year, Oklahoma (SB 184) and Rhode Island (HB 6091) introduced bills that would authorize localities to adopt and enforce tobacco ordinances, with the latter emphasizing policies should be more stringent than the requirements outlined in the state’s law. Inversely, Massachusetts Department of Health, a long-time leader in tobacco control, is facing SD 1628, which would repeal their recently enacted menthol ban. That said, we should remain mindful of the continuous efforts to overturn state flavor ban policies.

Tactics for Health Officials

The tobacco industry’s efforts to mislead the public and influence policymakers are widely documented. They are a major challenge and frustration to public health leaders who attempt to address one of the most significant threats to public health. The industry has pushed millions of dollars towards civil leaders and elected officials to further propagate narratives against a menthol ban. It is important to be well versed in how to refute current tobacco industry tactics and misleading talking points:

“Adults should be free to choose the products they use, including menthol and other flavors.”

In reality, there has been an uptick of use among youth, showing that the industry’s marketing tactics are reaching a wider, younger audience. Furthermore, the industry’s disproportionate marketing towards Black and Native communities has contributed to higher smoking rates and health disparities. There is strong evidence that eliminating menthol and other flavored tobacco products from the market would increase successful cessation efforts and decrease youth initiation rates—each of these protecting public health and addressing inequities.

“A menthol ban will create an underground illicit market for these products and increase criminalization within Black and other communities of color.”

When FDA announced their intent to ban menthol flavored cigarettes, they highlighted racial disparities as a reason for the ban. Effective regulation and enforcement to prevent illegal sales—not consumption—should be the focus rather than allowing the continued marketing and sale of products known to disproportionately harm certain communities. Cessation support should remain at the forefront of these actions by increasing access to evidence-based smoking cessation programs and resources. Further, research shows that a menthol ban would likely decrease illicit trade. State and local tobacco flavor bans, when combined with effective cessation resources, are a big step forward in health equity and social justice.

“E-cigarettes are a form of harm reduction.”

While the industry has publicly endorsed e-cigarettes as a method of harm reduction, they continue to sell the same harmful combustible cigarette products they claim to be combating. All the while they work on ways to circumvent state flavor restrictions by introducing synthetic menthol cigarettes and using litigation to reject state actions to mitigate public harm. Despite the industry’s attempts to block evidence-based tobacco control strategies with lawsuits, the Supreme Court has upheld California’s statewide ban on flavored tobacco products, providing further support that state and local governments have the authority to enact these policies. The 2022 Tobacco Control Network Policy Recommendations Guide offers comprehensive evidence-based policies, strategies, and case studies which states can reference as they implement these approaches to protect the public from further tobacco-related harm.

Moving Forward

It’s imperative for states to act and support comprehensive flavor ban legislation that explicitly includes menthol. Tobacco flavorings perpetuate health disparities for those disproportionately targeted by menthol products. Flavored products also attract a wider, younger audience, and create challenges for enforcement.

The main lesson I learned in North Carolina is that public health leaders can play a key role in influencing this work by using their positions to help foster and support relationships with coalitions that advocate for tobacco control, collecting and publicizing data to justify the need for policy action, and continuing to support the great work being done within state tobacco control programs.