The Food and Drug Administration’s top tobacco official said Monday that the Biden administration is still moving forward with its proposal to Ban menthol-flavored cigarettesmonths after advocacy groups accused the White House of rescinding the rule because of the approaching election.
“I just want to start by emphasizing that the FDA has not abandoned the menthol standard,” Brian King, director of the FDA’s Center for Tobacco Products, said during a hearing before the House Energy and Commerce Committee this week.
King was responding to a question from Rep. Robin Kelly, who expressed frustration with the Biden administration after the Department of Health and Human Services announced it had delayed the ban citing “immense” returns.
The Illinois Democrat had led an effort by members of the Congressional Black Caucus calling for the ban, citing the tobacco industry’s efforts to target black consumers using menthol-flavored cigarettes.
“It’s a priority for us. We’ve been through the rulemaking processes and it’s currently in the hands of the White House and it continues to be a priority for us,” King said.
The FDA’s proposal has been stalled for years and is under review by the White House Office of Management and Budget.
OMB records had projected the rule would be finalized by March 2024, but then moved the proposed ban to a list of measures for which the federal government “does not expect regulatory action to be taken” within the next year. An HHS spokesperson would not comment on whether the rule’s timeline had changed.
After the Biden administration announced plans to delay the measure indefinitely, supporters accused officials of bowing to political pressure.
“In an election year, politicians should put people first, not profiteers. Today’s news from the Biden administration is a huge blow to the Black community, which continues to be unfairly targeted and killed by Big Tobacco,” NAACP President Derrick Johnson said in a statement released in April.
The measure had met opposition from some civil rights groups and police, who accused the agency of “overcriminalizing tobacco” amid historically low smoking rates.
“Banning the legal sale of menthol cigarettes through licensed businesses will drive illegal and unauthorized distribution in communities of color, trigger criminal laws in all 50 states, increase the incidence of negative interactions with police, and ultimately increase incarceration rates,” the Law Enforcement Action Partnership wrote in April.
Democrats have also come under attack on the issue during their election campaign. The conservative group Building America’s Future PAC ran ads warning that “Harris and Washington Democrats are going after your menthol cigarettes.”
It is not yet clear whether Harris would support such a ban if elected. A spokesperson for her campaign did not immediately respond to a request for comment.
Frustration with e-cigarettes
Tuesday’s hearing also comes amid months of frustration on Capitol Hill over the FDA’s approach to the e-cigarette market.
Lawmakers criticized the agency for not doing enough to combat imports of illegal e-cigarettes that have flooded the market, often with menthol and other “kid-friendly flavors” not authorized by the agency. Others questioned the long delay in applications from companies seeking to legally market e-cigarettes and the agency’s actions that have penalized small businesses for illegal sales.
The king called for more resources to meet “the scale of this market, which is unprecedented.”
“We are making a difference, we have done a lot of groundbreaking work, but we need more resources and we need other agencies to join us as well,” King said.
He cited the high cost of trying to seize the thousands of e-cigarettes distributed in the country, warning that it “would be untenable.”
A recent effort to seize millions of dollars worth of unauthorized e-cigarettes at Los Angeles International Airport, touted by the agency last year, was slowed by a series of products that importers falsely declared as other products, King said, forcing officials to manually open boxes to search for the products.
“We don’t have the resources given the magnitude of the situation and we also need to make sure that all the key players in this area are committed to making this a priority as well,” King said.
