Lawsuit Aims to Ban Menthols, Big Tobacco’s Bait for Black Smokers

Now, almost a half-century later and 30 years after breaking his own addiction, the 58-year-old antismoking counselor sees Black youths still getting addicted to nicotine through the minty flavor. “I let the younger folks know the history in the African-American community, of how tobacco companies targeted Blacks,” says Debnam, whose work includes programs with the local YMCA and DC Tobacco Coalition that focus on e-cigarettes as well as traditional smokes.

After more than 50 years of hooking Black people through DJs, rappers, and discounts, the fake mint known as menthol is still big business. But as America reexamines equality in this year of Covid-19, menthol—the last tobacco flavor allowed to be sold in the U.S. market and an $85 billion-a-year business for companies including R.J. Reynolds, Altria Group, Philip Morris International, and Juul Labs—is the target of mounting legal efforts to force federal regulators to finally ban its sale.

“We all say Black Lives Matter, and they matter when it comes to tobacco products,” says LaTrisha Vetaw, who manages policy and advocacy for NorthPoint Health & Wellness Center in Minneapolis. Vetaw worked on a city ordinance to restrict where menthol-flavored tobacco products can be sold in Minneapolis that passed in 2018 and a statewide bill to ban them altogether that passed two committees in the Minnesota House of Representatives before the legislature adjourned this year.

Menthol is an issue of particular concern for communities of color. An estimated 86% of Black smokers use menthol cigarettes, compared with 46% of Hispanic smokers, 39% of Asian smokers, and 29% of White smokers, according to the U.S. Food and Drug Administration. Menthol reduces the irritation that smoking causes, making it easier to start the habit and harder to quit. The matter is seen as more urgent than ever because Covid-19 is affecting the Black population especially hard, in part because of their higher rates of diabetes, heart disease, and lung disease—all conditions correlated to tobacco use.

“The world is moving in this direction, against menthol” says Kelsey Romeo-Stuppy, managing attorney at Action on Smoking & Health, a 53-year-old group that was a leader in the movement that won the U.S. ban on cigarette commercials on television and radio in 1971 and a string of prohibitions on smoking in workplaces starting in 1994. ASH, along with another antismoking group, the African American Tobacco Control Leadership Council, sued the FDA in June for failing to regulate menthol cigarettes, despite Congress urging the agency to do so in 2009.

Their legal battle got a boost on Sept. 3, when the American Medical Association joined the suit as a co-plaintiff. “For generations, tobacco companies have promoted menthol cigarettes to the African American community, preying especially on African American youth,” said AMA President Dr. Susan R. Bailey. “The results are clear and grim; although African Americans usually smoke fewer cigarettes and start smoking at an older age, they are more likely than Whites to die from smoking-related diseases like heart disease and stroke.”

Cigarette companies say such efforts are misguided. R.J. Reynolds, the unit of British American Tobacco Plc that makes the bestselling menthol brand Newport, says menthol doesn’t “adversely affect initiation, dependence, or cessation.” Regulating menthol would create an illicit market, with an “attendant increased risk of police crackdowns, raids, and increased traffic and street stops” that would affect those already at a higher risk of racial profiling, Neassa Kaelan Hollon, an RJR spokeswoman, says. U.S. menthol sales make up 15% to 20% of total sales of BAT, which bought RJR in 2017, according to Bloomberg Intelligence.

Philip Morris International Inc. says menthol bans may harm public health, because some cigarette smokers have switched to menthol varieties of products that are less risky, such as its IQOS device, which heats but doesn’t burn tobacco.

Altria Group Inc., which sells Marlboros and IQOS in the U.S., has said “menthol cigarettes do not affect population harm differently than nonmenthol cigarettes.” Menthols made up about 10% of Altria’s retail share in the U.S. Juul, the vaping company in which Altria owns a 35% stake, still sells menthol flavors. In fact, more users migrated to menthol after it pulled cream and fruity vaping flavors off the market in October 2019. Juul declined to comment.

Even if ASH, the African American Tobacco Control Leadership Council, and other groups don’t get the national ban sought in their lawsuit, menthol cigarettes seem to be facing a slow death by piecemeal regulation. Since San Francisco prohibited their sale in 2018, Massachusetts and the European Union have followed suit. California’s governor signed a bill in August that outlaws the retail sale of flavored tobacco products, including menthol cigarettes. And Chicago’s City Council in September passed an ordinance banning the sale of flavored vape products and said it’s dedicated to banning all flavored tobacco products citywide, including menthol cigarettes.

Still, menthol has a history of dodging regulation. In 2009, when the FDA banned other cigarette flavors—candy, fruit, coffee—because they appealed to young people, menthol was left out. It also wasn’t included in a 2016 regulation demanding more scientific evidence on all tobacco products. And in February 2020, when a sweeping rule banning the sale of all flavored vape products went into effect, the peppermint derivative again escaped censure. So it remains the last flavor allowed among cigarette or vape products.

According to the lawsuit from ASH and the African American Tobacco Control Leadership Council Activists, if menthol had been taken off the market by 2010, 4,700 fewer Black people would have died prematurely by this year, and 461,000 Black people wouldn’t have taken up smoking.

Some activists point out that menthol has withstood complaints for more than a half-century, but it took only about five years for vape flavors to be banned after White moms became incensed that their kids had become addicted to vaporized nicotine laced with the taste of bubblegum and melon. “For me as a Black woman, it was a huge slap in the face,” NorthPoint Health’s Vetaw says. “Of course we want restrictions against vaping, but here we go again leaving the Black community and their health out through these decisions.”

Stanton Glantz, professor at the University of California at San Francisco’s Center for Tobacco Control Research & Education, says the demographics of the smokers seems to play a role in how fast regulations get made. “Menthol cigarettes are mostly smoked by Black kids without any clout,” he says. “But if you look at Juul, it was football players, debate leaders, kids with parents who are better off and better connected. What we’ve seen in the last few years is the emergence of a sophisticated class of pissed-off moms who have access to important politicians.”

There’s also, simply put, racism, says Carol McGruder, a founding member of the African American Tobacco Control Leadership Council. Many assume that when a Black child gets addicted to cigarettes, it’s poor parenting or a lack of self-control, she says, but when a White child gets addicted, it’s predatory marketing. “In the ’60s, when tobacco companies first started giving these products out to Black children, we were fighting for civil rights, cities were burning. It wasn’t something people could put their attention to,” McGruder says. That’s mushroomed until today when, “in a lot of people’s minds, it’s like a Black smoker was just born with a Newport in their mouth.”

Tobacco companies began targeting Black people with menthol smokes in earnest starting in the 1950s, according to cigarette advertising archives developed for the Smithsonian Institution. “A van would even pull up in Harlem and hand out free samples,” says Dr. Robert Jackler, a physician and professor at Stanford University’s School of Medicine, who created the archives. The collection shows how menthol brands such as Kool, now marketed in the U.S. by a unit of Britain’s Imperial Brands Plc, and Newport wooed Black people for a half-century with images of jazz artists, biracial gatherings, and slogans such as “Smoother. Wider. Different.”

“There’s what looks like a pattern of predatory marketing,” says Lisa Henriksen, a research scientist at Stanford, whose studies have shown the targeting continued into recent decades, with Newports often being sold at cheaper prices near high schools where there were more Black students.

Damone Presley recalls how in the 1980s, a van with the Kool brand on the side would often roll up at gatherings in Rondo, his Black neighborhood in St. Paul, Minn., and give out free menthols. He started smoking around age 8 and remembers getting menthols from such vans around age 13. “It was like a tingling, kind of smooth sensation,” he recalls. “I thought it was cool.” Now a 49-year-old who speaks out against smoking through a grassroots organization called Aurora/St. Anthony Neighborhood Development Corp., Presley says he feels angry about the van—and how menthol brands also supported Black musicians at state fairs and other events. “Young people’s lives are at stake.”

Although cigarette advertising is now restricted, companies still find ways to appeal to Black smokers through flyers and other promotions. A September 2018 email from Newport aimed at Labor Day revelers shows a Black woman dancing, and praises a Black chef with a “boozy barbecue sauce.” Another Newport email that year with pictures of Black musicians promoted the Fresh Take Studio, where visitors to the brand’s website could create a music track with a chance to win prizes. In February 2018 a Kool mailer was sent out to some homes featuring a mixed-race group taking a selfie while drinking and smoking.

Today, even with some cities and states moving against menthol, and Black Lives Matter raising awareness, there’s another daunting hurdle to ending menthol’s reign: opposition within the black community itself. Both McGruder and Vetaw say they’ve faced pushback from the Rev. Al Sharpton’s National Action Network and other Black groups that have accepted donations or contributions from R.J. Reynolds and argue that a menthol ban would take away—or even criminalize—the flavor of choice for Black people.

National Action Network didn’t return calls and emails requesting comment. When asked about its donations to NAN, RJR said it supports many organizations and its contributions aren’t conditional upon their maintaining a particular position.

In a tragic irony, McGruder and Vetaw say, members of some Black community groups have cited Eric Garner—the man who repeatedly uttered the phrase “I can’t breathe” as he was killed by New York police holding him in a chokehold in 2014, coining today’s widely used slogan against Black oppression—as a reason to not ban menthols. Officers had approached Garner for selling single cigarettes without tax stamps—leading some Black leaders to say that should menthols be banned, and a black market in them arise, more Black people might suffer a similar fate.

Vetaw and McGruder say menthol bans would only prohibit retail sales, not criminalize possession, so citing Garner’s situation as a reason to keep the flavor legal is a fallacy and a distraction. “Our position is that people are killed by the police all the time,” McGruder says. “That has nothing to do with cigarettes.”

After years of relatively quiet protest within the Black community itself, anti-menthol forces are finally getting critical support from outside it. Black Lives Matter protests have sparked a broad examination of racial inequities this year, and mainstream anti-tobacco activists have been increasing their focus on black communities. “Menthol is a problem for all youth, and menthol cigarettes are an even greater problem for African-American youth,” says Matt Myers, president of the nonprofit Campaign for Tobacco-Free Kids. E-cigarettes, rather than cigarettes, are menthol’s latest way of attracting Black youth, he says.

In what may be a key boost for the movement against menthol, the powerful anti-vape activists—considered the kind of affluent White mothers whose protest was key to getting e-cigarette flavors restricted—are also weighing in on menthol’s targeting of Black people. In July, African American Tobacco Control Leadership Council Co-chair Philip Gardner discussed “Why the fight against menthol matters” on a podcast created by Parents Against Vaping, an organization in New York whose co-founder has testified before Congress and met with President Trump at the White House last year about the need for vaping flavor regulation. The title of the group’s weekly series? “Big Tobacco Messed With the Wrong Moms.” Black activists hope they’re right.
 
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