Does the FDA Have the Power To Move Forward With a Planned Ban on Menthol Cigarettes?

In 2022, the U.S. Food and Drug Administration (FDA) proposed a sweeping plan to ban the sale of certain cigarette products. The idea was that this would help curb the number of new smokers taking up the habit, making it harder for minors to access cigarette and nicotine products that seemed to appeal specifically to a young age demographic.

After years of legislative back and forth on the idea, there seems to be a question about government overreach and whether or not the FDA can ban cigarettes.

I looked to the experts to learn more about the proposed ban, which products it would include, and how much progress the FDA has made — keep reading to find out what I learned.

When the FDA released a statement on April 28, 2022, it included a proposal to ban cigarette products that contain menthol, as well as cigars that featured any additional flavoring outside of the standard tobacco.

The FDA explained that they were moving in this direction in an attempt to reduce the number of preventable deaths caused by smoking, specifically by reducing the number of minors who pick up the habit when they are kids.

The Health and Human Services Secretary, Xavier Becerra, spoke directly to this plan in the statement, writing, "The proposed rules would help prevent children from becoming the next generation of smokers and help adult smokers quit." He added, "Additionally, the proposed rules represent an important step to advance health equity by significantly reducing tobacco-related health disparities."

They even directly addressed whether or not they had the authority to make such a move towards banning cigarettes in the statement.

"The authority to adopt tobacco product standards is one of the most powerful tools Congress gave the FDA and the actions we are proposing can help significantly reduce youth initiation and increase the chances that current smokers quit," Robert M. Califf, M.D., FDA Commissioner said. "It is clear that these efforts will help save lives."

While it can ban cigarettes, the FDA has yet to make such a sweeping move. As of the time of publication, menthol cigarettes and flavored cigars are still readably available everywhere tobacco products are sold.

As such, the American Medical Association has joined other organizations in filing a lawsuit against the FDA in the hopes that they can urge them to finally take action to remove the products they've already declared to be a hazard to the public.

President Joe Biden was part of 2009 legislation that banned all flavoring additives to cigarettes except for those traditionally found in tobacco and menthol. At the time, the FDA was given a directive to ban menthol flavoring if and when the decision could be deemed “appropriate for public health.”

Instead of banning the products, Newsweek says that the president is looking to limit the amount of nicotine included in cigarettes, potentially reducing the addictive nature of the products.

Whether the legislation will move through all of the phases of review it needs to go to, which includes intense regulator reviews and acceptance by other lawmakers, before his term ends on Jan. 20, 2025, remains to be seen.