NATO Submits Comments to FDA on Menthol in Cigarettes

Argues potential regulations could violate the First Amendment and raise black market threat

Thomas A. Briant, NATO Executive Director

On July 24, 2013, the FDA’s Center for Tobacco Products issued an Advance Notice of Proposed Rulemaking regarding the use of menthol in cigarettes and requested public comments on numerous questions about menthol. Today, NATO submitted a set of comments responding to several specific questions asked by the FDA. (Click here for a copy of this bulletin

In the rulemaking notice, the FDA asked for public feedback on whether the agency should consider establishing restrictions on not only the sale and distribution of menthol cigarettes, but also the advertising and promotion of menthol cigarettes. NATO responded that establishing additional restrictions on the retail sale of menthol cigarettes is unnecessary because retailers are responsible people who are not in the business of selling tobacco products to underage youth. In fact, this high level of responsibility is evidenced by the FDA’s own state compliance inspection program which demonstrates that approximately 95% of retailers inspected successfully pass the inspections without any violations. 

Instead of adopting of additional regulations and restrictions on the retail sale of menthol cigarettes, NATO argues that the FDA should research the phenomenon known as the “enabling adult” in which adult-aged friends, family members and even parents obtain cigarettes legally and then provide them to underage youth. With the FDA seeking to have an impact on youth smoking initiation, behavior and cessation, then addressing the problem of the “enabling adult” and taking action to educate the public to prevent minors from being provided cigarettes from adults could have a more positive affect on the issue of youth smoking than adopting further unwarranted restrictions on the retail sale of menthol cigarettes.

Moreover, there are a number of current federal regulations on the sale of all cigarettes, including menthol cigarettes, which removes the need for additional restrictions on just menthol cigarettes. These federal restrictions include outlawing the sale of cigarettes to anyone under 18, requiring retailers to verify a purchaser’s age, mandating that the sale of cigarettes be in a direct face-to-face exchange between a store clerk and the customer, allowing self-service displays only in stores where underage youth are not present, and banning the giving away of free samples of cigarettes. With these numerous regulations and restrictions already in place, there is no need to treat the retail sale of menthol cigarettes any differently than non-menthol cigarettes since all of these regulations apply equally to every kind of cigarette.

Regarding possible regulations on the advertising and promotion of menthol cigarettes, NATO’s response in its comments focused on the First Amendment protections of free speech and how the U.S. Supreme Court has extended those protections to advertising and promotion of products, including tobacco products. With the advertising and promotion of cigarettes considered commercial speech and subject to First Amendment constitutional protections, NATO argues that any new proposed restrictions on the advertising and promotion of menthol cigarettes must be in accord with these constitutional protections.

Also, the FDA asked for input on whether a ban on the sale of menthol cigarettes would result a significant increase in illicit trade. In its comments, NATO states that a black market will arise if the sale of menthol cigarettes is banned in the United States because criminal elements will take advantage of the opportunity to profit from illicit cigarette sales. This would result in law- abiding retailers losing sales to black market profiteers causing job losses and possibly even store closures.