By Robert J. Hansen | OBSERVER Staff Writer
The African American Tobacco Control Leadership Council, Action on Smoking and Health, and the National Medical Association filed a second lawsuit against the U.S. Food and Drug Administration last week for the agency’s inaction on issuing a final rule banning menthol cigarettes.
The lawsuit comes more than seven months after the FDA’s initial date for finalizing the new rule.
“The relentless and racist tobacco industry targeting has killed too many members of the Black community,” said Carol McGruder, co-chair of the African American Tobacco Control Leadership Council. “If Black lives truly matter, then we must end the sale of menthol cigarettes and do it now.”
The plaintiffs’ first lawsuit was filed June 17, 2020. Since then, approximately 39,789 Americans have died from menthol cigarettes.
Dr. Valerie Yerger, founding member of the African American Tobacco Control Leadership Council, said the second lawsuit comes years after the FDA failed to implement its own recommendations to ban menthol cigarettes, which resulted in the FDA proposing a rule to ban them that has sat in the White House since June 2021.
“Apparently, we need to keep beating the drum about how Black Americans in particular bear the greatest burden,” Yerger said.
She said that annually, 45,000 Black Americans die prematurely from tobacco-caused diseases and that 85% of Black smokers smoke menthol cigarettes.
“This disproportionate use of menthol cigarettes among Black Americans is not a coincidence,” Yerger said.
Yerger was one the first researchers who exposed the tobacco industry’s systematic and predatory marketing schemes targeting urban neighborhoods for menthol cigarette sales.
Between 1980 and 2018, menthol cigarettes were responsible for 10 million people smoking and 378,000 premature deaths in the United States, according to Yerger.
Black Americans accounted for 41% of those deaths while making up only 12% of the country’s population.
The proposed ban would lead to an estimated 923,000 people quitting smoking, including 230,000 Black smokers according to research, Yerger said.
“The evidence shows why none of us can remain silent and complicit as bystanders,” Yerger said.
Attorney Christopher Leung, who is representing the plaintiffs, said this lawsuit specifically asks the FDA to issue and publish its final ruling on whether to ban menthol cigarettes nationwide.
“Now that the FDA has determined that banning menthol cigarettes from the marketplace would protect public health, it has an obligation to act on that,” Leung said.
McGruder doesn’t expect any law or regulation to immediately change the lasting effects of menthol cigarettes in Black communities.
“We aren’t naive enough to think that bans are magic,” McGruder said. “This is the beginning of a very important process and we aren’t going anywhere.”
Twlia Laster, project director for Saving Our Legacy, African Americans for Smoke Free Safe Places, told The OBSERVER the FDA’s delay in issuing a final rule is harming public health.
The Saving Our Legacy project, based in Sacramento, has worked with key stakeholders, including lawmakers, businesses, educators, and community members, to reduce tobacco-related health disparities since 2007.
In 2022, the Sacramento City Council introduced an ordinance to ban sales of flavored tobacco, including menthol. Sacramento County followed with a countywide ban the same year.
The FDA’s own analysis found that banning menthol cigarettes will reduce youth smoking, increase successful attempts to quit among smokers, and save hundreds of thousands of lives as well as billions of dollars spent on treating smoking-related diseases.
Laster said if the sale of menthol-flavored cigarettes is banned, the FDA projects a 15.1% drop in smoking within 40 years, which would help save from 324,000 to 654,000 lives. The agency also projects the ban would stop up to 6,000 Black deaths each year.
“Tobacco products kill when used as intended. Menthol cigarettes and other smoking products make initiation easier, addiction stronger, and quitting harder,” Laster said. “Sacramento and other U.S. cities are watching. Regardless, SOL intends to undo the damage of the tobacco industry locally by working with decision makers to create a healthier Sacramento.”
The FDA does not comment on possible, pending or ongoing litigation, a spokesperson told The OBSERVER. It has two months to either respond to the lawsuit or file a motion to dismiss. If the lawsuit is successful, the FDA would have 90 days to make a final ruling.