Menthol Cigarettes Kill Black Smokers, Lawsuit Says

Two groups have filed a lawsuit claiming the U.S. government’s delay in banning menthol cigarettes has made black Americans more susceptible to diseases such as COVID-19.

In their lawsuit, the African American Tobacco Control Leadership Council and Action on Smoking on Health claim that, even though the government knew of the dangers of menthol cigarettes, they failed to take proper action after Congress passed the Family Smoking Prevention and Tobacco Control Act in 2009.

Congress did not ban menthol at the time the act was passed, but did recognize that menthol cigarettes “may pose unique health risks to those who smoke them,” the lawsuit states. Furthermore, Congress was reportedly concerned about “proportionately higher rates of menthol cigarette use among African American smokers” and the “historic targeting of African Americans for menthol cigarette use by tobacco companies.”

Because of this concern, Congress directed the Food and Drug Administration to create a Tobacco Products Scientific Advisory Committee and turned the issue of menthol in cigarettes over to the committee, the lawsuit says.

As directed, the committee was formed and took up the matter of menthol in cigarettes, the lawsuit states. The committee reportedly conducted a survey assessing the scientific evidence concerning the public health effects of menthol cigarettes and issued a 2011 report on the survey’s findings.

“Removal of menthol cigarettes from the marketplace would benefit public health in the United States,” the report read.

In 2013, the FDA conducted a peer-reviewed investigation, which reached a similar conclusion. However, the lawsuit alleges, the FDA did not act on these findings for five years.

In 2018, the FDA commissioner announced the agency would advance “Notice of Proposed Rulemaking that would seek to ban menthol in combustible tobacco products, including cigarettes and cigars,” according to the lawsuit.

The FDA said it intended to “accelerate the proposed rulemaking process to ensure that our policies on flavored tobacco products protect public health[.]”

But in June 2019, the FDA reversed course and instead—without explanation—decided to allow menthol to remain on the market.

The lawsuit maintains the government’s years of inaction harms public health.

At the time the Tobacco Control Act was enacted, “menthol cigarettes represented over 25% of all cigarettes smoked in the United States,” the lawsuit says. Today, that number has increased to 36%.

Nearly 70% of African Americans who smoked used menthol cigarettes in 2009; that figure has risen to more than 85%, the lawsuit states.

Those numbers are dramatic on their own, but the era of COVID-19 has given new context to the health risks associated with smoking.

The complaint cites a study in the New England Journal of Medicine that found “coronavirus patients in China who smoked were more than twice as likely as those who didn’t to have severe infections from COVID-19.”

The lawsuit also points out early news reports on coronavirus that concluded the respiratory disease was infecting and killing black Americans a high rate. The reports pointed to African Americans’ higher rates of diabetes, heart disease and lung disease as a partial cause. All those conditions are highly correlated with tobacco use, which reportedly makes people more vulnerable to COVID-19.

The African American Tobacco Control Leadership Council and others have repeatedly called on the FDA to re-evaluate tobacco product standards and ban menthol cigarettes, the lawsuit claims. The agency even refused to resolve a petition the council filed more than seven years ago.

The lawsuit seeks several orders from the Court:

• An order declaring the defendants to be in violation of the Administrative Procedure Act;
• An order clearing the defendants to be in violation of the Tobacco Control Act;
• An order directing the defendants to begin the rulemaking process for adding menthol to the list of flavors banned by the Tobacco Control Act;
• An order directing the defendants to respond to the petition submitted by the by plaintiff African American Tobacco Control Leadership Council, et al.;
• An order directing defendants to provide for publication in the Federal Register the basis for their decision on whether to add menthol to the list of banned flavors
• An order directing defendants to evaluate tobacco product standards to determine whether such standards should be changed to reflect new data

The plaintiffs also seek a monetary award of reasonable costs and attorneys’ fees, as well as any other relief deemed appropriate by the Court.

Do you think the FDA should take steps to ban menthol in cigarettes? Let us know your concerns in the comments.

The African American Tobacco Control Leadership Council and Action on Smoking and Health are represented by Christopher K. Leung of Pollock Cohen LLP.

The Menthol Cigarette Ban Delay Lawsuit is African American Tobacco Control Leadership Council and Action on Smoking and Health v. the U.S. Department of Health and Human Services, et al., Case No. 4:20-cv-04012-KAW, in the U.S. District Court for the Northern District of California.

Read More Lawsuit & Settlement News:

Morgan Stanley Faces Discrimination Lawsuit Filed by Axed Diversity Chief

Rochester School District Sued over Decades-Old Sexual Abuse

Benefiber Class Action Says Supplement Isn’t 100% Natural

Exxon and PBF Energy Reach $4.4M California Wage and Hour Settlement