Jeffrey A. Singer
On January 24, the press reported that the Trump Food and Drug Administration has withdrawn its proposed ban on menthol cigarettes and flavored cigars. The agency did not issue a statement on the withdrawal. The Biden FDA originally proposed the ban in April 2021.
This action comes after the Biden administration delayed implementing the proposal in March 2024. In April 2024, then-Secretary of Health and Human Services Xavier Bacerra stated his department needed “significantly more time” to consider public comments and concerns about a menthol tobacco ban. Biden’s Surgeon General, Vivek Murthy, urged the FDA to end the delay and impose the ban in November 2024.
According to the National Survey on Drug Use and Health, in 2020, 81 percent of Black smokers preferred menthol-flavored cigarettes. Numerous civil liberties organizations, including the American Civil Liberties Union, had opposed the menthol ban, concerned that menthol bans might exacerbate racial and ethnic disparities in law enforcement and within the criminal justice system.
In a May 2022 Orange County Register column warning a ban would ignite a black market in menthols, I wrote:
Remember Eric Garner? New York City’s exorbitant taxes on cigarette packages generated an underground market in untaxed individual cigarettes, called “loosies.” In 2014, police infamously encountered 43-year-old Eric Garner selling loosies on a street corner, and a policeman’s chokehold led to his death as he repeated “I can’t breathe.” And this happened without a menthol ban. With menthol cigarettes more prevalent among Black and Hispanic Americans, expect police to focus their attention on minority communities. This might make inequities in criminal justice even worse.
That same month, I submitted written comments to the FDA opposing the proposed ban. I included evidence that menthol cigarette smokers consume fewer cigarettes than regular cigarette smokers and may have a slightly lower risk of getting lung cancer.
President Trump did not sign an executive order to withdraw the menthol ban proposal. The FDA withdrew the proposed ban through an administrative action. The Office of Information and Regulatory Affairs formally documented the proposal’s withdrawal on January 21, 2025.
The Trump FDA’s withdrawal of the menthol ban proposal strikes an essential balance between health concerns and individual freedoms. It is rare but refreshing for a government agency to appear to consider the unintended consequences of its actions.