oday, The African American Tobacco Control Leadership Council (AATCLC) and Action on Smoking and Health (ASH) held a virtual press conference announcing their joint complaint against the FDA, represented by Pollock Cohen, LLP. The complaint requests the court compel the FDA to fulfill its mandate to take action on FDA’s own conclusions that it would benefit the public health to add menthol to the list of prohibited characterizing flavors and therefore ban it from sale.
“We stand before you today to announce that we are suing the United States Food and Drug Administration for their failure to implement public health policy that protects the health and welfare of African Americans with respect to menthol cigarettes,” said Carol McGruder, founding member and co-chair of the AATCLC.
This lawsuit brings to the forefront the lack of action from the FDA to fulfill its mandate concerning whether menthol products should be taken off the shelves. In 2009, Congress passed—and President Obama signed into law—the Family Smoking Prevention and Tobacco Control Act. The act created a flavor ban in cigarettes but excluded menthol, subject to further research. In 2011, the FDA’s Advisory Committee concluded that the “Removal of menthol cigarettes from the marketplace would benefit public health in the United States.”
Despite this conclusion, the FDA has not begun the rulemaking process of removing menthol from combustible cigarettes. The plaintiffs are asking the court to direct the FDA to take action.
Tobacco is the leading cause of preventable death worldwide, smoking-related illnesses are the number one cause of death in the African American community, and 85 percent of African American smokers smoke menthol cigarettes.
“By continuing to delay, the FDA and the U.S. government are failing to protect the health of U.S. citizens, particularly African Americans, and the U.S. is also falling behind the global trend as countries around the world are increasingly banning menthol,” said Kelsey Romeo-Stuppy, managing attorney at ASH.
Our nation finds itself at a moment in time when action to eradicate systemic inequities and racism is crucial to fighting injustice, and this case is a perfect example of action which will elicit positive change. It is no coincidence that the timing of the announcement falls two days before the 155th anniversary of Juneteenth, the day slaves in Texas finally heard they had been freed. Juneteenth has become a day in the Black community to celebrate the sacrifices that it took to free African Americans from slavery.
“Now is the time for the FDA to step up to the plate and do what it was supposed to do years ago – prohibit the sale of all flavored tobacco products,” said Dr. Phillip Gardiner, founding member and co-chair of AATCLC.