Battle over strategically important Sacramento City ban on flavored tobacco products heats up while FDA continues to dither

With the vote on Sacramento City tobacco flavor ban approaching, the Sacramento Bee recently published opposing op-eds on the subject, one supporting the ban by Drs. David Cook and Phil Gardner, “To save African American lives, flavored tobacco ban must include menthol cigarettes,” and one opposing the law by vape store owner Noordidin “Noor” Kachhi, “Ban on flavored vaping products will kill small businesses like mine.” 

Cook and Gardner frankly lay out the racial dimension of the importance that flavor bans include menthol, not just because many kids start with menthol cigarettes, cigars, and e-cigs, but because menthol has been a key element of tobacco industry targeting of the African American community.   They pointedly note that “In California, 70 percent of African American adults who smoke consume menthols compared to just 18 percent of white adults who smoke.” 

The racial dimension of exempting menthol from regulation has been around a long time.  Back in 2008, when the 2009 Family Smoking Prevention and Tobacco Control Act that gave the FDA jurisdiction over tobacco products was pending before Congress, a bipartisan group of seven former high-level health officials wrote Congress urging them not to exclude menthol from an immediate ban on characterizing flavors in tobacco products.  One of the former secretaries of heath, Joseph A. Califano Jr., said the legislation was “clearly putting black children in the back of the bus.”

Menthol was (and remains) so important to the tobacco companies that they threatened to kill the bill if menthol was included.  The compromise was that the FDA Tobacco Products Scientific Advisory Committee was to complete a study and make recommendations about menthol in a year.  TPSAC delivered the report on March 19, 2011, concluding recommended that “"Removal of menthol cigarettes from the marketplace would benefit public health in the United States."

It is 8 years later and the FDA has yet to take any meaningful action on menthol.  (It did try to require that tobacco companies demonstrate that including menthol and other flavors in e-cigarettes, cigars, and newly “deemed” tobacco products in 2016, but the Obama White House blocked them.)   

Which brings us back to the Sacramento City Council and Mayor Darrell Steinberg and their local flavor ban.  With no meaningful action from the FDA on the horizon, protecting the public – and particularly the African  American public – from menthol has fallen to local and state governments.

This racial dimension is particularly poignant in Sacramento, which is still dealing with the falliout from the police shooting of Stephon Clark, an African American.

No doubt the tobacco companies, working through their surrogates, are continuing to argue that a menthol ban will create more police-on-Black violence.  This argument is, as most industry arguments, silly.  More important, it ignores the fact that the tobacco industry uses menthol to hook and kill millions of African Americans who, despite smoking fewer cigarettes than whites, suffer higher death rates from tobacco-induced disease.

The Sacramento City fight is particularly strategic because City Hall is just a few blocks from the California State Capitol, where a state flavor ban is being considered.  A clean win for health advocates in Sacramento City would help create momentum for the bill.  In contrast, defeat or passage of a weak or ineffectual  bill would hurt the state effort.  This is particularly likely because Sacramento Mayor Darrell Steinberg is the former President Pro Tem of the State Senate and a well-respected legislator.

That’s why Juul and other tobacco companies have been fighting the Sacramento law so hard from the beginning.  They have clearly decided that they can’t kill the bill outright, so are pushing a “compromise” that pretends to solve the problem but actually blocks meaningful regulations.  (Examining their changes to the bill is instructive to see how small changes in language can have big practical impacts.) 

Because they know how unpopular they are, the companies are, of course, staying in  the shadows and, as always, hiding behind local small retailers, as exemplified by the op-ed opposing the comprehensive flavor ban.  As always, the companies’ surrogates claim that the tobacco control law will hurt other businesses.  The reality is that Juul and the other companies are working hard to protect their business and profits.

The Mayor has expressed genuine concern about the police and African Americans.  The question is whether he will use his clout to protect African Americans from Big Tobacco.