US urges dismissal of lawsuit seeking menthol cigarette ban

By Jonathan Stempel

(Reuters) – The Biden administration asked a federal judge to dismiss a lawsuit by anti-smoking groups demanding that it end nearly a year of delay and ban menthol cigarettes, which are used disproportionately by Blacks and younger people.

In a Thursday night court filing, the Food and Drug Administration said the delay was not unreasonable because it had yet to determine that a ban was “appropriate for the protection of the public health.”

It also said the plaintiffs had no direct stake in a ban and therefore had no standing to sue, citing the U.S. Supreme Court’s June 13 rejection of a bid by anti-abortion groups and doctors to restrict access to a widely used abortion pill.

The lawsuit was filed on April 2 in the Oakland, California federal court by the American Medical Association, the African American Tobacco Control Leadership Council, Action on Smoking and Health and the National Medical Association.

A lawyer for the groups had no immediate comment on Friday.

Found naturally in peppermint and similar plants, menthol is the only cigarette flavor still allowed under a 2009 law that gave the FDA authority to regulate tobacco.

Government health officials had hoped to ban the flavor last August but have pushed back the date multiple times.

The latest delay was on April 26, when Health and Human Services Secretary Xavier Becerra suggested the matter could drag past November’s election by saying talks will take “significantly more time.”

Health and Human Services is the FDA’s parent agency.

A ban would likely cost billions of dollars in annual revenue for cigarette companies such as Altria (NYSE:) and British American Tobacco (NYSE:).

It could also impede Black voters’ support for President Joe Biden as the Democrat seeks reelection.

About 81% of Black adults who smoke cigarettes use menthol varieties, compared with just 34% of white adults, according to the Centers for Disease Control and Prevention.

Among cigarette smokers aged 18 to 25, 53% used menthol cigarettes, compared with 42% of smokers over 35, the CDC said.

The FDA has said eliminating menthol could prevent 324,000 to 654,000 smoking deaths in the United States over 40 years.

The case is African American Tobacco Control Leadership Council et al v. U.S. Department of Health and Human Services et al, U.S. District Court, Northern District of California, No. 24-01992.