If the regulation is approved, menthol cigarettes and flavor-infused tiny cigars will not be sold in the United States. California has supported the proposal, arguing that it would lessen the number of young people who start smoking and facilitate the cessation of older smokers.
Politico reports that Califf has personally contacted top Biden staffers and "enlisted senior officials at the White House & the Health and Human Services Department to help push for the ban," in addition to enlisting outside assistance.
Politico undersells Califf's conduct when he refers to his "behind-the-scenes encouragement of outside pressure" as an "unconventional policy making tactic." Reactions to backdoor lobbying carried out by an appointed sub-cabinet agency official are unlikely to be anything less than intense irritation for the incumbent of the nation's highest office. Biden already knows California's stance on the proposed prohibition.
Political pressure may overturn the FDA's prohibition on menthol cigarettes.
The White House's autumn agenda of planned regulations moved the estimated timing of the FDA menthol cigarette rule from 2023 to March 2024, putting it on hold since early December 2023. (The year 2024 is only a suggestion; it is not a binding promise.) In October of last year, the White House Office of Management and Budget (OMB) received the final rule for review.
Before each agency regulation is completed and put into effect, it is reviewed by the OMB Office of Information and Regulatory Affairs (OIRA). Before reaching a final judgment, OIRA met with supporters and opponents of the menthol cigarette law between October and December.
The ban's opponents are concerned about the rise of illegal sales and police enforcement activities in minority communities. Notwithstanding concerns about unwanted police encounters and the potential loss of important votes from irate menthol users, supporters of the ban argue that a menthol ban would benefit public health, particularly for African Americans. (not to mention lack of personal liberty and physical autonomy).
The White House staff might have been frightened off by the menthol prohibition during the OIRA review phase due to concerns about possible political repercussions, such as decreased voting among Black voters in November 2024. Black votes are important to Biden's prospects of winning reelection. (The great majority of black smokers choose to smoke menthol cigarettes.)
According to Yolonda Richardson, CEO of Campaign for Tobacco-Free Kids, "it's only going to get harder for them to do it now that we're in a political season." "The tobacco business benefits from all of the delays. That just gives them more time to keep them on the streets and more opportunity to addict children.
However, the number of youth cigarette smokers has decreased. Just 1.6% of middle and high school students who participated in the National Youth Tobacco Survey in 2023 said they had smoked cigarettes (even just one puff) in the previous 30 days. This is the third year in a row that this percentage has stayed below 2.0%.
The FDA won't approve menthol vapes to aid smokers.
Four years after President Trump's FDA Commissioner Scott Gottlieb raised the prospect of a menthol ban in his "comprehensive" tobacco and nicotine strategy, the FDA declared its intention to outlaw menthol cigarettes in 2021. In April 2022, the FDA released a proposed regulation on menthol cigarettes.
A significant component of Gottlieb's proposal was also going to be revived by the FDA under Biden: a regulation requiring extremely low nicotine concentration in cigarettes. However, the restriction of menthol cigarettes gained the greatest support, mainly because tobacco control organizations have been pushing for one ever since the FDA Center for Tobacco Products (CTP) opened for business in 2009.
The previous commissioner thought that many smokers would embrace a range of vaping goods as an alternative for traditional cigarettes, therefore he included authorization of them in his "comprehensive plan." It seems that the FDA thought that flavored vape pens with menthol may be a useful weapon to keep menthol consumers from switching to the black market in the event that their favorite smokes were outlawed.
Menthol vapes and e-liquids mainly evaded the ax and remained under evaluation, even throughout the first year of Califf's FDA leadership under Biden—during which the agency issued marketing bans for the majority of flavored vaping goods.
After Califf appointed former CDC employee Brian King to head the CTP, that changed. Since King's appointment, the FDA has denied menthol-flavored vaping goods on the grounds that adolescents use flavored products more often than other flavors (vapers of all ages do). The FDA led by Califf & King no longer seems to think that appealing vaping options are necessary for menthol users who fear a ban.
Califf has always opposed e-cigarettes. During his tenure as the last FDA commissioner under Barack Obama, Califf supervised the implementation of the 2016 Deeming Rule, which at first included a complete prohibition on flavored vape devices. Later, Califf claimed that the restriction had been taken out of the final regulation by the White House OMB.
Califf pushed for a ban on all vape flavors and even proposed a prescription-only vaping product model prior to his 2021 return to the FDA.
In a 2019 essay published in between his FDA posts, Califf stated that "the regulatory trifecta would be to: 1) require the tobacco sector to lower the amount of nicotine in its goods to sub addictive levels (even though the law forbids regulation that lowers the level to zero); 2) ban without a prescription vaping products; and 3) support prescriptions vaping so that the 30 million tobacco users do not experience acute withdrawal all at once)."
