White House Misses March Deadline on Menthol Ban

Second lawsuit filed against FDA for inaction on menthol
menthol cigarettes
Photograph: Shutterstock

The expected publication date for final rules on banning menthol cigarettes and flavored cigars was set for March, according to the Biden administration’s Fall 2023 Unified Agenda, a nonbinding document released twice a year that describes each federal agency’s upcoming regulatory plans. But that deadline has passed, furthering the delayed ruling.

“The administration delayed issuing the final rule in December and now has missed the new deadline it set to issue the rule by March 2024,” according to a joint statement on Monday from the Campaign for Tobacco Free Kids and the National Association for the Advancement of Colored People (NAACP).

On Tuesday, public health groups filed a second lawsuit against the Food and Drug Administration (FDA) for the agency’s inaction on issuing a final rule banning menthol cigarettes. The lawsuit comes more than seven months after the FDA’s initial date for finalizing the new rule and follows the FDA’s 15-year delay in equitable policymaking, according to a joint press release from the African American Tobacco Control Leadership Council, Action on Smoking and Health, and the National Medical Association. The plaintiffs’ first lawsuit was filed on June 17, 2020.

“We’re extremely disappointed to be forced to file this second lawsuit against the FDA in support of protecting Americans from menthol cigarettes,” said Laurent Huber, executive director of action on smoking and health. “The FDA’s own research confirms that a menthol ban would save lives; there is no scientific reason to delay finalizing this rule.”

Industry groups and lawmakers in Congress have continued pushback saying these rules will add to the illicit tobacco market and affect convenience-store sales.

The National Association of Convenience Stores (NACS), which represents more than 150,000 c-stores in the United States, last November sent a letter to President Biden calling on the president to reconsider the FDA’s proposals to ban menthol cigarettes and flavored cigars.

Bans “are likely to usher in an array of negative unintended consequences by adding to the already burgeoning illicit tobacco market, moving business away from legitimate companies to unregulated foreign producers, and removing the consumer guardrails put in place by responsible sellers like the convenience store industry,” Doug Kantor, general counsel for NACS, said in the letter.

The expected publication date for final rules on banning menthol cigarettes and flavored cigars, has also contributed to shifts in this category and consumer spending, according to a recent Goldman Sachs Nicotine Nuggets survey. Retailers who do operate stores in areas with flavor bans report negative impacts with some reporting 30%-50% declines in nicotine sales, the survey revealed.

“The looming decision by the FDA on a federal menthol ban on cigs has also led many retailers to take a wait-and-see approach on carrying gray market vapor products, which are higher margin and more affordable for consumers,” said Bonnie Herzog, a managing director at Goldman Sachs, New York.

The FDA in April 2022 proposed rules that would ban menthol cigarettes and flavored cigars.

CSP reached out to the FDA for comment but did not receive a reply by posting time.

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