The FDA's Perverse Plan To Ban Menthol Cigarettes and Cap Nicotine Levels

The FDA's nicotine restrictions will push consumers toward black-market suppliers, who are completely unconstrained by the FDA’s regulations.

The Food and Drug Administration (FDA) wants to prevent smoking-related deaths by making cigarettes less appealing. Toward that end, the FDA plans to ban menthol cigarettes and limit nicotine content to "reduce the addictiveness of cigarettes."

Meanwhile, the FDA seems determined to make vaping products, the most promising harm-reducing alternative to cigarettes, less appealing to smokers. The perverse combination of these two regulatory strategies would undermine public health in the name of promoting it.

The FDA claims menthol cigarettes are especially addictive, particularly for black smokers, who overwhelmingly prefer them. The evidence on that score is shaky, and so is the condescending assumption that African Americans are helpless to resist menthol's minty coolness or the marketing that touts it. Worse, the proposed ban would promote illegal production and distribution, inviting a law enforcement response that would disproportionately hurt the people the agency claims it is trying to help—a point the FDA implicitly concedes by alluding to the policy's "racial and social justice implications."

Mandating a nicotine reduction likewise raises obvious problems. That policy also would spur black-market activity, and it would encourage current consumers to smoke more, which hardly seems consistent with the FDA's avowed goals.

The same could be said of the FDA's refusal to approve vaping products in flavors other than tobacco. Although the agency views alternative flavors as dangerously enticing to teenagers, surveys indicate that the vast majority of former smokers who vape favor them.

So far, the FDA has approved vaping products only in tobacco flavors. It has rejected millions of applications for other flavors, including menthol. Yet its cost-benefit analysis of the proposed ban on menthol cigarettes assumes the availability of e-cigarette alternatives.

That analysis, notes Michelle Minton, a senior policy analyst at Reason Foundation, which publishes this magazine, relies on a study in which replacing "high-risk combustible menthol cigarettes" with "lower-risk menthol-flavored nicotine vapor products" accounts for "approximately half of the benefits." How are menthol smokers supposed to make that switch if the FDA won't let them buy menthol-flavored e-cigarettes?

The FDA's bias against flavor variety is hard to reconcile with its acknowledgment that vaping has great potential to reduce smoking-related disease and death. Banning the flavors that adult consumers prefer will drive some people back to smoking and discourage current smokers from switching.

That policy, like a menthol-cigarette ban and a nicotine limit, also will push consumers toward black-market suppliers, who are completely unconstrained by the FDA's supposedly enlightened regulations. The FDA apparently has learned nothing from the country's unhappy experience with the war on drugs.