Lawsuit intends to compel Biden administration to ban menthol cigarettes amid months long delay

The Biden Administration was sued on Tuesday by anti-smoking organizations over the long-awaited menthol cigarette ban, which has been sitting dormant in the White House for months.  

The action represents the most recent attempt to compel the government to outlaw menthols, which are largely utilized by young people and Black smokers. It comes as supporters' worries that election-year politics could sabotage the government plan are intensifying.  

President Joe Biden's health officials first planned to release the rule removing the mint flavor in August of last year. White House representatives stated late last year that they would revisit the rule in March. After the March deadline passed, three nonprofit organizations, including Action on Smoking and Health, filed their complaint in a federal court in California.  

“Because of defendants’ inaction, tobacco companies have continued to use menthol cigarettes to target youth, women, and the Black community all to the detriment of public health,” the groups state in their complaint. 

A spokesperson for the White House declined to comment on the lawsuit Tuesday. 

The Food and Drug Administration has spent years developing the plan to eliminate menthol, estimating it could prevent 300,000 to 650,000 smoking deaths over several decades. Most of those preventable deaths would be among Black Americans. 

Like all major federal regulations, the plan must get final approval from the White House. 

Previous FDA efforts on menthol have been scuttled by tobacco industry pushback or competing political priorities across several administrations. The latest delay comes as Democrats voice worries about Biden’s prospects in a rematch against former President Donald Trump. 

White House officials have held dozens of meetings with groups opposing the menthol ban, including civil rights advocates, business owners and law enforcement officials. Some suggested a rule targeting menthols could suppress Biden's turnout among Black voters. In almost all cases, groups opposing the ban receive financial support from tobacco companies. 

In recent months, supporters of the plan have tried to assure the White House that banning menthol will not hurt Biden’s re-election chances. 

“If Black lives truly matter, then we must end the sale of menthol cigarettes and do it now,” said Dr. Carol McGruder, of the African American Tobacco Control Leadership, in a statement. McGruder's group is among those suing the FDA and its parent agency, the Department of Health and Human Services. 

A lawyer who helped file the lawsuit said the government will have about two months to respond. 

A 2020 lawsuit by the same groups jump-started FDA's work on menthol, alleging that the agency had “unreasonably delayed” action against the flavor. 

Menthol is the only cigarette flavor that was not banned under the 2009 law that gave the FDA authority over tobacco products, an exemption negotiated by industry lobbyists. The act did, though, instruct the agency to continue to weigh whether to ban menthol. 

The flavor’s persistence has infuriated anti-smoking advocates, who point to research that menthol’s numbing effect masks the harshness of smoking, making it easier to start and harder to quit. 

More than 11% of U.S. adults smoke, with rates roughly even between white and Black populations. About 80% of Black smokers and most teenagers who smoke use menthol.