The research, conducted by the Rutgers School of Public Health Center for Tobacco Studies, anticipates arguments the tobacco industry is likely to use in a lawsuit challenging the FDA’s authority to ban menthol cigarettes. It then weighs the strength of the scientific evidence justifying a menthol ban. Finally, it considers the potential for illicit trade to undermine the effectiveness of a menthol ban. Considering those factors, this paper concludes that an FDA rule banning menthol cigarettes is likely to survive a lawsuit. In late 2018, then FDA Commissioner Scott Gottlieb showed commitment to a menthol ban late in 2018 that had not been displayed by the FDA before.
“All cigarettes are deadly. Menthol cigarettes are particularly nefarious because the tobacco industry designed them as ‘starter products’ that mask the harshness of smoking, leading to more smokers overall. Additionally, menthol cigarettes are even harder to quit than nonmenthol cigarettes,” said lead author Kevin Schroth, member of the Rutgers Center for Tobacco Studies. “This paper shows that right now the FDA has the scientific evidence and legal power to pull these deadly products from the market, saving thousands of lives, especially in communities that have been targeted historically by menthol marketing,” continued Schroth, who is also a faculty member at the Rutgers School of Public Health.
Even if the FDA proceeds expeditiously, the rulemaking process may take at least two years without including potential litigation delays. “New Jersey should not wait for FDA action and move forward with proposed legislation which was approved by the state Assembly’s Health and Senior Services Committee,” said co-author Cristine Delnevo, and Director of Rutgers Center for Tobacco Studies. “New Jersey has led nationally on sound tobacco control policies to protect vulnerable populations and should continue to lead and become the first state to ban menthol cigarettes.” A New Jersey law would be justified by the same scientific evidence that supports an FDA rule.