The attorney general of North Carolina is throwing his support behind the latest attempt to persuade the Food and Drug Administration to ban menthol traditional cigarettes.
Josh Stein is part of a bipartisan group of 23 attorneys general who sent a letter to the FDA, which is transitioning from the Trump administration to the Biden administration.
Stein's participation could be pivotal — and controversial — considering North Carolina's status of one of the nation's leading tobacco-growing states, and the home of Reynolds American Inc. and ITG Brands LLC.
It is projected it will take years for the FDA to go through the regulatory process to implement any heightened restrictions, and the agency likely will face multiple lawsuits from tobacco manufacturers and anti-smoking groups.
A ban on menthol traditional and electronic cigarettes could deliver a major financial blow to the tobacco industry, in particular to British American Tobacco Plc, which owns top-selling U.S. menthol cigarette brand Newport through Reynolds.
The common message among the attorneys general is that banning those products "would benefit public health, decrease youth smoking, and help mitigate harm to communities of color."
The group also cited their concerns that menthol cigarettes are a deterrent to smokers wanting to quit.
"Menthol cigarettes are designed to be easier to smoke,” Stein said in a statement.
“That means they make it easier to get hooked. What’s more, they’re marketed in ways that disproportionately harm young people and people of color."
Some tobacco analysts say the attorneys general could find a more receptive response from the Biden administration.
In December, the FDA and the U.S. Department of Health and Human Services did not list as 2021 priorities banning menthol cigarettes or reducing nicotine levels in traditional cigarettes.
The agencies released at that time their unified agenda and regulatory agenda through at least August.
The 2020 Monitoring the Future study, released in December by the University of Michigan, found that 12th-graders’ consumption of traditional cigarettes increased from a record low of 5.7% in 2019 to 7.5%.
Meanwhile, 28.2% of 12th-graders said they vaped at least once during the 30-day period. That’s down from a record high of 30.9% in 2019. Researchers began reviewing vaping in 2015 when the rate was 16.3%.
Reynolds said in a statement it is concerned about youth smoking rates.
"However, bans and prohibitions are not an effective strategy to address these concerns, because the consequence of prohibitions on adult choices to use tobacco products is a potential illicit market," the company said.
"Moreover, the scientific evidence does not support regulating menthol cigarettes any differently than non-menthol cigarettes."
Mitch Kokai, senior policy analyst with Libertarian think tank John Locke Foundation, said the attorneys general may be "virtue signaling about a relatively unpopular habit."
"That doesn’t mean that they will actually do much to improve public health," Kokai said.
"State attorneys general have better things to do than try to generate headlines by playing 'health cop.' "
In 2009, Congress exempted menthol from banned flavorings in traditional cigarettes in the federal Tobacco Control Act.
There have been several calls for tighter FDA regulations in the 12 years, including by the agency.
The FDA has said 30% of all adult smokers and more than 40% of all youth smokers consume a menthol style.
However, in 2013, the FDA said its evaluation on menthol cigarettes concluded there is little evidence to suggest they are more or less toxic than regular cigarettes, or contribute to more disease risk.
The FDA took action in February 2020 to remove some flavored electronic cigarette products, but allowed tobacco and menthol flavors to remain in the marketplace.
Also in February 2020, the U.S. House of Representatives passed a bill by a 213-195 vote that would dramatically tighten federal tobacco regulations, including banning all non-tobacco flavorings for tobacco products.
However, the Democratic-sponsored H.R. 2339, titled “Reversing the Youth Tobacco Epidemic Act," was not taken up by the U.S. Senate.
In November 2018, FDA commissioner Dr. Scott Gottlieb raised the issue of tightening regulations on tobacco products, particularly banning traditional menthol cigarettes.
Gottlieb said when he unveiled a regulatory “road map” July 25 that the agency believes menthol in traditional cigarettes, and candy and fruit flavorings in cigars, e-cigarettes and vaporizers, are used to entice underage youth to tobacco products.
U.S. Sens. Richard Burr and Thom Tillis, both Republicans from N.C., issued statements questioning that strategy, citing that a Democratic-controlled Congress created a legal exemption for menthol cigarettes in 2009.