Can a Menthol Ban Survive Lawsuits?

Study says courts could uphold possible FDA move
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NEW BRUNSWICK, N.J. Despite years of controversy, menthol cigarettes appear to have withstood the threat of prohibition, at least on a federal level. But a new study says that if the U.S. Food and Drug Administration (FDA) were to act on its recent suggestions to move ahead with such a ban, the decision may withstand court scrutiny.

The Rutgers School of Public Health Center for Tobacco Studies, New Brunswick, N.J., released a study that balanced the arguments for and against the ban, concluding such a ban “is likely to survive a lawsuit.”

If the FDA were to execute such a ban and if the courts upheld it, the c-store industry would suffer a significant blow, considering how large a segment menthol cigarettes are within the tobacco category. At the recent NACS State of the Industry Summit, figures from Chicago-based SwiftIQ put menthol and other flavored cigarettes at 35% of unit volume and 34% of sales generally.

Researchers anticipated tobacco-industry arguments, reviewed scientific evidence justifying such a ban and examined the potential effects of an illicit trade if a ban were to go into effect.

“All cigarettes are deadly, [but] 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,” said lead author Kevin Schroth, member of the Rutgers Center for Tobacco Studies. “Additionally, menthol cigarettes are even harder to quit than nonmenthol cigarettes.”

The research concluded that the FDA has the scientific evidence and legal power to pull these products from the market, Schroth said.

Even if the FDA proceeds expeditiously, experts say the rulemaking process may take at least two years without including potential litigation delays. Meanwhile, lawmakers in cities such as San Francisco have banned the sale of menthol and other flavored tobacco products.

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