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Member Research & Reports

Member Research & Reports

Rutgers: FDA Ban on Menthol is Likely to Survive Tobacco Industry Lawsuits

A proposed ban of menthol combustible tobacco products by the U.S. Food and Drug Administration (FDA) will likely be upheld in court, albeit after a lengthy legal process, according to a new paper by Dr. Kevin Schroth, associate professor and member of the Rutgers School of Public Health Center for Tobacco Studies.

The paper appears in Public Health Reports.

The 2009 Family Smoking Prevention and Tobacco Control Act provided the FDA with broad authority to regulate the manufacturing, marketing, and distribution of tobacco products, including banning flavored cigarettes, to protect public health. However, the Act did not ban menthol cigarettes, which are used disproportionately by adolescents, women, Lesbian, gay, bisexual and transgender (LGBT) populations and racial/ethnic minority groups, particularly African Americans.

The research, conducted by the Rutgers School of Public Health Center for Tobacco Studies anticipates arguments the tobacco industry is likely to use in a lawsuit challenging the FDA’s authority to ban menthol cigarettes.  It then weighs the strength of the scientific evidence justifying a menthol ban. Finally, it considers the potential for illicit trade to undermine the effectiveness of a menthol ban. Considering those factors, this paper concludes that an FDA rule banning menthol cigarettes is likely to survive a lawsuit. The FDA has sought public comments on menthol two previous times this decade without following through. In late 2018, then FDA commissioner Dr. Scott Gottlieb showed commitment to a menthol ban late in 2018 that had not been displayed by the FDA before. There is no indication that his surprise resignation in March 2019 will alter the FDA’s course or priorities.