Before the government banned cigarette advertising on radio and television in 1971, the airwaves were filled with messages that menthol cigarettes were smoother, more refreshing, and capable of delivering “extra coolness in your throat.” After the ban, Big Tobacco swiftly shifted its marketing strategies to print media and fought back with an arsenal of weapons that kept brands like Newport and Kool on the shelves. But now, in response to 18 million smokers and 480,000 menthol-related deaths each year, the Food and Drug Administration (FDA) has issued a new draft rule that would entirely ban menthol from cigarettes.

The FDA published the “Tobacco Product Standard for Menthol in Cigarettes” that would “prohibit menthol as a characterizing flavor in cigarettes” in the May 4 Federal Register, the government’s daily compilation of proposed rules from Federal agencies. The publication seeks 60 days of public comment prior to the adoption of final, legal regulations.

Before issuing the new proposed rule, the FDA said it “carefully considered” both the scientific evidence and complex policy issues surrounding a menthol ban. It said a citizen petition, sponsored research, and two “advance notices” of rulemaking preceded the release of the draft. It also explained that the Family Smoking Prevention and Tobacco Control Act of 2009 banned all “characterizing flavors in cigarettes” other than menthol. As a result menthol is now the only legal characterizing flavor that remains on the market.

The citizen petition that requested a ban on menthol was filed in 2013 by the Tobacco Control Legal Consortium (now known as the Public Health Law Center). Lawsuits and updated petitions followed and in April 2021, the FDA issued a response to the petition that determined the ban on characterizing flavors should be updated to include menthol.

The FDA’s new draft also explained that despite the significant declines in US cigarette smoking since 1964, “very large disparities in tobacco use remain across groups defined by race, ethnicity, educational level, and socioeconomic status and across regions of the country.” These disparities are exacerbated by menthol cigarette use.

Before issuing the proposed rule, the FDA explained that it carefully reviewed the scientific evidence about menthol. The “totality of evidence” from its review found a link between menthol and “positive smoking experiences.” It also discovered that menthol contributes to progression to regular cigarette smoking in youths and young adults, leads to greater cigarette dependence, and results in reduced cessation in youths and African Americans.

The FDA’s draft begins with an explanation of the purpose of the new rule. It states that “Tobacco use is the leading preventable cause of death and disease in the United States” and goes on to explain that “menthol’s flavor and sensory effects increase appeal and make menthol cigarettes easier to use, particularly among youth and young adults.” It says that the menthol “flavor compound produces a minty taste and cooling sensation when inhaled” that cuts the harshness and leads to “greater nicotine dependence.” Studies have attributed tobacco-related cancers to 40,000 Black lives each year, a rate that is 17% higher than for whites and 74% higher than for Asians and Latinos.

The FDA has the legal authority to “revise or issue tobacco product standards,” under the Tobacco Control Act of 2009. The agency says it hopes the new rule will “reduce tobacco-related health disparities and advance health equity.” It clarifies that the agency “expects a significant reduction in the likelihood of youth and young adult initiation and progression to regular smoking, which is expected to prevent future cigarette-related disease and death.”

This hope is supported by “modeling studies that estimate a 15.1 percent reduction in “smoking prevalence within 40 years if menthol cigarettes were banned. And they estimate that deaths among African Americans would be reduced by 324,000 to 654,000 in a 40-year period because of the popularity of menthol in this population.

It should come as no surprise that tobacco companies disagree with these studies. In comments from the agency’s advance notice, they argue there is “insufficient scientific evidence to support a menthol product standard.” They argued that menthol cigarettes pose the same health risk as their non-menthol counterparts and stated that the agency’s definition of “characterizing flavors” is vague.

In addition to the FDA, Massachusetts has banned menthol cigarette sales and California may vote to prohibit their sale this November.

The May 1 issue of the Los Angeles Times revealed the extensive campaign and war chest that Big Tobacco, primarily Reynolds American, has used in recent years to prevent the FDA from adding menthol to its list of characterizing flavors. In collaboration with the Bureau of Investigative Journalism, the Times “tracked strategic efforts to keep menthol cigarettes in the hands of smokers.”

These activities include hiring and paying speakers such as local police chiefs to tell audiences that “prohibiting menthol cigarettes would increase policing in Black communities and create a new layer of racism in America.” Reynolds America also employs a team of black lobbyists including former Congressman Kendrick Meek (D-Fla) and MSNBC commentator the Rev. Al Sharpton to “stoke fear” in Black communities about the ban. The speakers also predict significant growth in contraband. Tobacco companies even paid protesters to attend anti-ban rallies.

Reynolds America stands to lose about $7 billion in Newport sales each year if the menthol ban is enacted. The stakes are high for big tobacco. But the stakes cannot be as high for them as they are for the vulnerable populations whose health problems and deaths are linked to the menthol-induced “extra coolness” in their throats.