By Edward Henderson, California Black Media  

A California based non-governmental organization, The African American Tobacco Control Leadership Council (AATCLC), has joined two other public health advocacy groups in a second lawsuit against the U.S. Food and Drug Administration (FDA) for the agency’s inaction on issuing a final rule banning menthol cigarettes.

The suit, filed by Christopher Leung of Leung Law, PLLC on behalf of the AATCLC, Action on Smoking and Health (ASH) and the National Medical Association (NMA) comes more than seven months after the FDA’s established date for finalizing a new rule against menthol cigarettes.

“We are a group of Californians, although we have expanded now. We were formed in 2008 to inform and direct the activities of commercial tobacco control and prevention as they affect African Americans and African immigrants in this country,” said Carol McGruder, co-chair of the AATCLC.

McGruder was speaking during a press briefing April 2 organized to announce the lawsuit. with representatives from the ASH, NMA and other organizations.

“Menthol cigarettes have had a devastating and disproportionate impact on the health of Black Americans,” said Yolanda Lawson, President of the NMA. “Smoking related diseases are the number one cause of death in the Black community.”

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The lawsuit also follows the FDA’s 15-year delay in creating national policy that would ban cigarettes made with compound menthol, a minty substance that cigarette makers infuse into their tobacco products, making them more addictive and harmful.

Despite significant reductions in overall smoking rates in the US, smoking among poor, less educated and marginalized groups remains high. Every year, 45,000 Black Americans prematurely die from tobacco-caused diseases. An estimated 85% of them smoked menthol cigarettes.

“This disproportionate use of menthol cigarettes among Black Americans is not a coincidence,” Dr. Yerger continued. “I was one of the first tobacco documents researchers out of UCSF who exposed the tobacco industry’s systematic, predatory marketing schemes to dump highly concentrated menthol cigarette marketing into urban inner-city areas.”

In 2011, the FDA’s own scientific advisory committee concluded that the “Removal of menthol cigarettes from the marketplace would benefit public health in the United States.”

If the sale of menthol-flavored cigarettes is indeed banned, the FDA projects a 15.1% drop in smoking within 40 years, which would help save between 324,000 to 654,000 lives.

As a result of the Plaintiffs’ first lawsuit, the FDA made the landmark determination to add menthol to the list of banned characterizing flavors in cigarettes.

On the contrary, tobacco-aligned groups in the past have argued that banning menthol cigarettes would be impact federal and state budgets with the loss of nearly $6.6 billion in cigarette sales taxes. Menthol cigarettes account for over one-third of the U.S. cigarette market.

Other arguments from tobacco-backed groups include unintended consequences of a ban such as increased policing in Black and Brown communities due to contraband cigarettes. However, health advocates have dismissed this claim stating the ban would apply to companies that make or sell menthol cigarettes, not individual smokers.

By law, the United States has two months to respond to the lawsuit. The feds can respond to it or file a motion to dismiss.

If the suit is successful, the FDA would have 90 days to make a final ruling.

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