Will the FDA impose a ban on menthol cigarettes in the U.S.?

The Tobacco Products Scientific Advisory Committee’s report on the use of menthol flavouring in cigarettes is imminent but, even if they recommend a menthol ban, will the FDA actually impose one?

Menthol imparts a minty flavouring to cigarettes and these cigarettes are very popular in the US, particularly among African American smokers, among whom 80% smoke menthol. Whatever the FDA advisory panel recommends in its report the conclusion need not be accepted in terms of banning or not banning menthol in cigarettes.

FDA to publish own report on advisory panel’s findings

The FDA report was required by the Family Smoking Prevention and Tobacco Control Act 2009 which legislated to stop cigarette makers from adding flavours regarded as ‘candy’ flavours (which were regarded as encouraging under-age smokers) and included cloves, the flavouring in kretek-style cigarettes which dominate the Indonesian market and were also available in the US.

The advisory committee’s report on menthol, the flavouring which was not banned in the 2009 law, “does not set FDA policy, does not set FDA actions, and FDA’s receipt of final report will not have a direct and immediate effect on availability of menthol products”.

The FDA advisory panel has now held its final meeting on the menthol issue study before the complete draft report, which must be ready by 23rd March 2011. The FDA will then issue an initial report on its review of the advisory panel’s findings in about 90 days though there is no schedule for deciding whether to ban or restrict menthol cigarettes.

Menthol as a “gateway” to smoking

A preliminary report stated that removing menthol cigarettes from sale in the US would benefit public health because menthol flavouring harms the public by encouraging more people to start smoking and making it harder to quit.

Some health groups argue that menthol masks the harsh taste of tobacco and ‘cools’ the smoke, making it more appealing to first-time smokers – as such, menthol is sometimes referred to by tobacco control groups as the “gateway” to smoking.

Indications are that the panel will reach at least some negative conclusions on menthol cigarettes. According to reports, panelist Mark Clanton, chief medical officer at the American Cancer Society, and lead author of the draft chapter on the public-health effects of menthol, said that “The availability of menthol cigarettes has an adverse impact on public health by increasing the number of smokers with resulting premature death and avoidable mortalities.”

US largest menthol market in world – high stakes

The US is the largest menthol cigarette market in the world and though the actual size of the market is declining (due to the overall decline of the cigarette market in the US), its proportion of the total market has been growing, accounting for about 30% of total volume sales in 2009, compared to 25% a decade ago, in 1999.

Lorillard’s Newport is the top-selling menthol brand, followed by Marlboro Menthol from Altria and Reynolds American ‘s Camel Menthol, Kool and Salem. The US is the largest menthol cigarette market in the world. A menthol ban would harm Altria and Reynolds but would be an unmitigated disaster for Lorillard, maker of Newport, which is second only to Marlboro in the overall US cigarette market. Menthol cigarettes account for some 90% of Lorillard’s sales.

Industry arguments raise issue of illicit trade…

The US tobacco industry is solidly against menthol cigarettes being banned on a number of grounds such as not accepting that menthol makes people more likely to take up the smoking habit.

However, the industry’s counter-argument of which the panel seems to be taking greatest account is the suggestion that a menthol cigarette ban would lead to a rise in illicit trade – i.e. if smokers cannot find menthol products through legitimate retail channels, they will seek out their preferred cigarette through illicit channels – either contraband menthol from other countries or altogether fake menthol products.

According to reports, Committee Chairman, Jonathan Samet, a professor at the University of California’s Keck School of Medicine in Los Angeles, speaking after the last meeting of the panel said, ‘Depending on what directions or actions the FDA may choose to take, then they would need to consider the potential for contraband under those scenarios’.

…and ‘biased’ advisory panel

As well as arguing against the banning of the menthol flavouring, Lorillard and Reynolds American have gone to court (the complaint filed February 25th in federal court in Washington) to stop the FDA ‘receiving or relying on’ the advisory panel’s recommendations on the grounds that three of the eight panel members have conflicts of interest since they have served as paid witnesses in lawsuits against the tobacco industry and taken money from drug companies that make smoking-cessation aids. Altria is not part of the suit.

Finely balanced outcome

So will the FDA ban menthol as it has banned other flavours? In an open letter to Congress in 2008, seven former secretaries of Health and Human Services or Health, Education, and Welfare and a former surgeon general urged that the 2009 Family Smoking Prevention and Tobacco Control Act ban menthol cigarettes as well.

‘Banning flavoured cigarettes, which mask the harshness of tobacco – something that can deter some first-time smokers, especially children – is a positive move. But, by failing to ban menthol, the bill caves to the financial interests of tobacco companies and discriminates against African Americans.’

However a draft chapter from the panel concluded that there is ‘insufficient’ evidence to conclude that smokers of menthol cigarettes have a different risk of tobacco-related disease compared to those who smoke non-menthol cigarettes.

On the other hand, according to another preliminary report from the panel, use of menthol cigarettes is rising among adolescents and is ‘very high’ among minority youth. The most recent draft chapter, which looked at patterns of menthol cigarette smoking, stated that more than 80% of African American adolescent smokers and more than half of Hispanic smokers ages 12 to 17 use menthol cigarettes.

Will it happen?

On the same day as the panel held its final meeting, Lorillard shares rose US$2.04 to US$80.82, suggesting that the consensus in the investment community is that the possibility of an imminent ban on menthol cigarettes ban is currently not perceived as strong.

One reason for this may be statements suggesting that the panel will be recommending more FDA studies on whether restricting menthol cigarettes will increase demand on the illegal market. Another may be the intriguing comment made by Committee Chairman Jonathan Samet, that there may be “strategies other than a full removal”.