Antismoking groups have been pressuring Joe Biden for years to ban menthol cigarettes. They made significant progress at one point: In April 2022, the Food and Drug Administration proposed a rule that would prohibit their sale. But there has been little movement since then, and with time running out for Biden’s first term in office, advocates are pushing hard to finalize the ban. They’ve even gone so far as to sue the FDA this month for failing to act.
Banning menthol would plausibly lead to positive outcomes for public health, reducing the appeal of smoking cigarettes and causing some smokers to quit. But there are also concerns that the goals of the ban would be undermined by the FDA’s restrictions on safer alternatives like flavored e-cigarettes, which would incentivize illicit markets, make menthol smokers more likely to stick with conventional cigarettes (just unflavored ones), and potentially subject the ban to legal challenge. And then there’s the existential question: Does announcing a ban risk political blowback, imperiling Biden’s chances for a second term and giving an edge to Donald Trump in what may be an extremely tight election?
The political question seems to be top of mind in the White House, with officials telling reporters at the Washington Post that concerns about announcing a ban during a reelection campaign are the reason for delay. With the release of a recent poll commissioned by the Campaign for Tobacco-Free Kids, antismoking groups are attempting to assuage worries that a ban will alienate voters. That survey finds that voters generally support ending the sale of menthol cigarettes and that a ban would make no difference in the margin between Biden and Trump.
The optimistic spin on this poll is that Biden can safely announce a menthol ban without losing voters. A pessimist might note that, even according to this poll, the ban doesn’t appear to help him either. This isn’t surprising: Given the high stakes of the 2024 election, most voters probably have bigger concerns than the legality of menthol cigarettes.
However, there is one group that would be directly affected by a menthol ban: the more than 10 million Americans who currently smoke menthols. A 2018 poll commissioned by another antismoking group found that support for a ban plummets among smokers of menthol cigarettes, with less than a third of them supporting the policy.
The danger for Biden is that while most voters might not care too strongly about a ban either way, the group of people who actually smoke menthols care very much. This wouldn’t matter if the president were elected by popular vote, relative to which the number of menthol smokers motivated to vote on the issue is likely small. But what counts for 2024 are the margins in swing states. Some of these were extremely narrow in 2020, with Biden winning Georgia and Arizona by fewer than 12,000 votes. In that context, the risk of losing votes from some of the millions of Americans who smoke menthol cigarettes is worth taking seriously.
I’m also skeptical that everyone would wind up being as relaxed about a menthol ban as that poll suggests. Its language is notably passive, referring to a proposal “to end the sale” of menthol cigarettes while avoiding language like ban or prohibit. Media and political opponents would frame it differently. A ban would open Biden to attacks from the right for “nanny state” policies and from liberal reformers for how a ban would involve law enforcement. A federal ban would not target individual users—but pushing menthol cigarettes into illicit markets likely would lead to arrests and prosecutions of sellers. This is already happening in Massachusetts, where reports detail numerous arrests and seizures of illegal products as well as pending felony prosecutions since the state’s flavor ban took effect in 2020. A menthol ban also took effect more recently in California; Modesto police posted a video last week showing them seizing cartons of illicit Newport cigarettes. Is promising to enact a similar prohibition nationwide smart politics in 2024?
Politics aside, even some advocates of a federal menthol ban raise doubts about the Biden administration’s ability to implement it successfully and ensure that it survives legal challenges. The FDA’s proposed menthol rule relies heavily on a study published in 2021 projecting that a federal ban would avert about 650,000 premature deaths by the year 2060, demonstrating a substantial benefit to public health. However, the modeling in that study assumes that many smokers of menthol cigarettes would switch to e-cigarettes rather than to regular, unflavored cigarettes, and that this switch is most likely to occur if e-cigarettes are available in menthol flavors. The catch? So far, the FDA hasn’t authorized a single e-cigarette for sale in menthol or any other nontobacco flavor.
(In practice, that doesn’t mean that flavored e-cigarettes are unavailable. Thousands of nicotine vapor products in various shades of illegality are sold throughout the United States, a practice that in itself raises doubts about the FDA’s capacity to enforce a ban on menthol cigarettes.)
Cliff Douglas, an adjunct professor at the University of Michigan and the president of the Foundation for a Smoke-Free World, is one of the co-authors of the 2021 study mentioned above. “Our modeling on which the FDA depends found that the menthol cigarette ban will be significantly less effective if the agency hasn’t provided for a legal, authorized market for alternative products to which smokers of menthol cigarettes can turn,” says Douglas. Authorized e-cigarettes are currently a “minuscule percentage of the marketplace,” limited to just a handful of products, he notes. Since Biden’s 2022 appointment of Brian King as director of the FDA’s Center for Tobacco Products, the agency hasn’t authorized any e-cigarettes at all.
That doesn’t merely make a federal menthol ban less effective; it also opens it up to legal challenge. “If the FDA relies on science, including what we generated, they can’t cherry-pick it and just give it partial credence and ignore the rest,” says Douglas. “That creates a target for legal challenge for being arbitrary and capricious.” This is a reasonable concern given the FDA’s recent track record in other tobacco cases: The agency’s regulation of premium cigars was struck down last year for being arbitrary and capricious, and e-cigarette makers have prevailed on challenges to its regulatory processes in the U.S. Court of Appeals for the 5th Circuit, producing a circuit split that may reach the Supreme Court.
All of this adds up to a stack of difficult trade-offs for the Biden administration. The FDA’s de facto prohibitionist stance on relatively low-risk e-cigarettes has made it harder to credibly prohibit far deadlier menthol cigarettes. Acting now has the advantage of getting a rule on the books, but that would be for naught if it’s later struck down in court—or it could hand a narrow electoral edge to Trump. It’s not clear how a second Trump administration would approach menthol cigarettes, but it would be disastrous for the country in countless other ways.
Advocates of a menthol ban are understandably impatient to see the policy put into place, especially given uncertainties about the next administration, but any rule will likely take years to implement and get past inevitable legal challenges. A reelected Biden will have plenty of leeway on tobacco policy in 2025. Ideally, the FDA will use that time to legalize at least some flavored e-cigarettes, providing an off-ramp for current smokers of menthols—a smart policy, with or without a menthol ban.
In the meantime, progressives and antismoking groups should cut Biden some slack. If a ban were to tip a few thousand voters in key swing states to Donald Trump, the nation will face problems far greater than menthol-flavored cigarettes.
