Tired of waiting for the feds, local groups target menthol cigarettes

Anti-smoking groups are taking matters into their own hands

Published December 17, 2017 5:59AM (EST)

 (AP Photo/Gerald Herbert)
(AP Photo/Gerald Herbert)

This story was produced by FairWarning, a nonprofit news organization based in Southern California that focuses on public health, consumer, labor and environmental issues. You can sign up for their newsletter here.

Anti-smoking groups, frustrated by federal inaction on restricting menthol cigarettes, are taking matters into their own hands.

In recent months, cities ranging from Oakland and Los Gatos, Calif., to Minneapolis and St. Paul have passed laws limiting the availability of menthol cigarettes, which health advocates say have a particular appeal to beginning smokers. St. Paul is the latest, voting this month to restrict sales to adult-only tobacco and liquor stores.

“For a long time, everyone hoped that FDA [the Food and Drug Administration] would move forward,” said Matthew L. Myers, president of the Campaign for Tobacco-Free Kids, an anti-smoking group based in Washington, D.C. “As those hopes dissipated, there was a growing consensus that communities needed to act.”

Of at least a dozen cities and counties across the nation that have approved restrictions, San Francisco has been the most ambitious. In June officials there agreed on an outright sales ban that was supposed to take effect in April 2018. But a petition drive funded by R.J. Reynolds, maker of the top-selling menthol brand, Newport, has forced a June 2018 ballot measure on the proposed ban.

If voters OK the ban, other cities might be emboldened to follow San Francisco’s lead. With menthols accounting for about 30 percent of U.S. cigarette sales — and research showing much higher percentages among African-Americans and smokers under age 18 — billions of dollars could be riding on the outcome.

“If, as we hope, the San Francisco ordinance is upheld, I think we will see very quick action across the country,” Myers said.

The battle stems from a landmark 2009 law that authorized the FDA to regulate tobacco products. It included a ban on candy, fruit and spice flavors in cigarettes because of their appeal to teens.

Congress exempted menthol, and directed the FDA to determine if it, too, should be restricted or banned. A 2013 FDA staff report found it is “likely that menthol cigarettes pose a public health risk above that seen with nonmenthol cigarettes.” But the agency has not acted.

Reynolds has already spent more than $1.3 million to overturn the San Francisco ordinance, according to a campaign finance report for January through September. The company was the sole paying sponsor of the petition drive that gathered 34,000 signatures to fight the ban. R.J. Reynolds did not reply to requests for comment.

Underground economy

Its campaign committee is called “Let’s Be Real San Francisco, a Coalition of Concerned Citizens Supporting Freedom of Choice, Adult Consumers, Community Leaders and Neighborhood Small Businesses with Major Funding by R.J. Reynolds.” It argues that “bans and prohibitions just don’t work,” and “push sales to the underground economy” or neighboring communities.

Other municipalities that have restricted menthol cigarette sales include Chicago and, in California, the cities of Berkeley and Hayward, along with Santa Clara, Contra Costa and Yolo counties.

There is no evidence that menthols are more toxic than other cigarettes. But they are viewed by health authorities as a starter product that anesthetizes the throat so beginners can tolerate the harshness of tobacco smoke.

Reynolds and other cigarette makers have countered that banning menthol would have no public health benefit because the flavoring does not cause people to start smoking earlier or to smoke more cigarettes.

More than half of smokers under 18, however, choose menthol cigarettes, according to the Centers for Disease Control and Prevention. Menthol sales to black smokers are even higher — nearly 90 percent — according to the research cited by the CDC.

For decades, cigarette makers courted black leaders and organizations. Earlier this year, they enlisted activists including Rev. Al Sharpton to hold meetings at churches in Minneapolis, Los Angeles and Oakland, warning that banning menthols could create an underground market and give police new reasons to jail black males.

Anti-smoking groups denounced the arguments as scare tactics. “Ultimately whenever the arguments are coming from the tobacco industry, you have to take them with a grain of salt,” said St. Paul City Council member Jane Prince.

Few think a nationwide ban on menthol cigarettes is in the offing. “We’ve long believed a realistic worst case scenario is if the FDA recommends the level of menthol be reduced over a number of years,” wrote Wells Fargo Securities analyst Bonnie Herzog in an August report to investors.

The 2009 tobacco law did not limit kid-friendly flavors in alternative products such as e-cigarettes and small cigars, which have become increasingly popular with young smokers. E-cigarettes are still being marketed in such flavors as ”Berry Cobbler,” “Caramel Cafe,” and ”I Love Watermelon Candy.”

In July, new FDA Commissioner Scott Gottlieb said the agency will seek comments on the role of flavors, including menthol, in attracting young people to tobacco products. He suggested that allowing flavors in certain products, such as e-cigarettes, might encourage some smokers to switch to potentially less harmful forms of nicotine delivery.

Meanwhile, scores of municipalities have limited sales of flavored e-cigarettes, cigars and chewing tobacco–mainly by restricting them to adults-only stores.

Thomas A. Briant, who heads the National Association of Tobacco Outlets, recently outlined the concerns of manufacturers and retailers in an interview with the trade publication Convenience Store Decisions.

Since January 2016, he said, more than 100 cities across the country — many of them in California, Minnesota, Massachusetts and Rhode Island — have restricted the sale of candy and fruit flavored e-cigarettes and cigars to adults-only stores, although most of these laws exempt menthol.

"A real threat" to retailers

The menthol cigarette laws, “coming on the heels of previously passed flavor bans,” represent “a real threat to the viability of many tobacco related retailers,” Briant said. He declined comment to FairWarning.

Local curbs on sales of the flavored alternative products have been upheld by federal appellate courts covering New England and New York. In a case brought by Reynolds and other tobacco companies, the First Circuit Court of Appeals ruled in 2013 that the city of Providence, R.I., was not preempted by federal law from limiting sales of flavored products to cigar and cigarette bars. That spurred scores of communities in neighboring Massachusetts to adopt similar ordinances.

In St. Paul, the City Council previously had restricted the sale of flavored e- cigarettes and cigars. Earlier this month, it passed the measure to also limit menthol cigarettes sales to adult-only tobacco stores and liquor stores.

“The tobacco industry has lied to us forever” and “targeted communities of color,” said council member Prince, who authored the ordinance, which was approved by a 6-1 vote. “Over the long term, people are figuring out it’s costing us too much as a community.”

By Paul Feldman

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