The Biden administration is about to propose a menthol cigarette ban

Expect a bitter battle over menthol cigarettes and flavored cigars

The Food and Drug Administration appears on track to hit a deadline to propose a ban on menthol cigarettes and flavored cigars this week, a controversial move long sought by tobacco opponents. 

But don’t expect to see such products off stores’ shelves any time soon. Efforts to regulate tobacco have incited vehement battles in the past — and will do so again. 

After the agency unveils its plan, FDA officials will sort through what’s sure to be a massive number of public comments. Then, the agency will issue a final rule. And then, the tobacco industry will very likely sue to stop the ban, multiple advocates and tobacco watchers say. 

• “It’s quintessentially American how litigious this area is,” said Clifford Douglas, the director of the University of Michigan’s Tobacco Research Network. When it comes to the tobacco industry, “any time a measure meaningfully threatens their bottom line, they will challenge it in court.”

The issue all comes down to a carve-out in the Tobacco Control Act. Passed in 2009, the landmark legislation granted FDA the power to regulate tobacco products. The law banned flavored cigarettes, while directing the agency to instead study menthol. 

The FDA and its outside experts later concluded that banning menthol would improve public health. Other supporters of the measure say the policy is critical to tackling a major health disparity. But the tobacco industry fiercely disagrees, contending there isn’t a scientific basis for regulating menthol and non-menthol cigarettes differently. 

The agency is up against a critical deadline to propose the menthol ban — regulations which eluded both the Obama and Trump administrations. Let’s walk through the timeline: 

• Last April, the FDA faced a court deadline to respond to a 2013 citizen petition seeking a prohibition on menthol cigarettes.
• In response, the agency announced its plan to issue proposed rules barring menthol in cigarettes and all characterizing flavors in cigars (that includes menthol).
• The FDA said it would unveil its plan within a year. That was April 29, 2021.
• Late last week, the White House budget office finished reviewing the proposed rules. That means the agency is on track to hit the one-year deadline. (The FDA declined to comment on when it would release the rules, but said it’s “committed to advancing these policies as quickly as possible.”)

Some civil rights, Black health organizations and consumer groups have pushed hard for the ban, viewing it as a major racial justice issue. They allege the tobacco industry has unfairly targeted the Black community through discounts on menthol products and advertising in stores in Black neighborhoods. Past studies have shown that Black smokers use menthol cigarettes at a much higher rate than White smokers.

Last week, several officials from the American Cancer Society Cancer Action Network (ACS CAN) met with White House budget office and FDA staffers. In the meeting, the advocacy group stressed that banning menthol would help reduce health disparities, according to Katie McMahon, who works on ACS CAN’s policy development team.

Also last week … the NAACP echoed that message in a letter sent to top administration officials. The failure to prohibit the sale of menthol products would “counter the goal and function of the FDA to protect and promote public health for all, including the African-American community,” the civil rights group wrote. 

But others, including some Black leaders, have been wary of such a ban. They’ve argued it singles out Black smokers and puts them at risk of more confrontations with the police. Members of the Congressional Black Caucus have spoken out against the ban in the past, though opposition has decreased over the last few years. 

Civil rights activist the Rev. Al Sharpton recently urged the administration to establish a commission to study the racial and criminal justice impact a menthol ban would have on Black and other underserved communities. 

• “Before we could support a ban, we want to know that this is not going to lead to criminalization,” Sharpton told The Health 202. His group, the National Action Network, has received donations from tobacco maker Reynolds American in the past, but Sharpton said that contributions don’t influence the organization’s positions.

White House prescriptions

VP Harris tests positive for the coronavirus

Vice President Harris has tested positive for the coronavirus, the White House announced yesterday, making her the highest-ranking Biden administration official to contract the virus, our colleagues Amy B Wang and Cleve R. Wootson Jr. report. 

• Harris, 57, isn’t exhibiting any symptoms and is fully vaccinated and has received two booster shots against the coronavirus.
• She is not considered a “close contact” to Biden or first lady Jill Biden due to their respective recent travel schedules, Kirsten Allen, press secretary to Harris, said in a statement. 

Also on Tuesday … Sens. Chris Murphy (D-Conn.) and Ron Wyden (D-Ore.) announced they too had tested positive for the coronavirus. Both lawmakers are fully vaccinated and reported experiencing mild symptoms.

Kirsten Allen, press secretary to the vice president:

Sen. Chris Murphy (D-Conn.): 

Meanwhile … White House press secretary Jen Psaki said during a news conference yesterday that the administration has no plans to update its “stringent” covid-19 policies following Harris’s positive test:

Democrats are running out of time to secure a deal with Manchin

White House officials are confronting a “real fear” that they may not be able to reach a deal with Sen. Joe Manchin (D-W.Va.) to pass an economic package before November’s midterm elections, our colleagues Jeff Stein and Mike DeBonis report. 

President Biden proposed last spring to spend more than $4 trillion to transform the American economy. Now, White House officials say they’d consider themselves fortunate to secure a deal worth even a quarter of that, largely because of holdups with Manchin — an essential vote for the president’s agenda in an evenly split chamber. 

In recent weeks, administration officials have quietly tried to gauge whether the lawmaker would support a package primarily consisting of legislation that meets Manchin’s calls for clean energy initiatives, prescription drug reform and higher taxes on the rich and corporations.

• But the senator hasn’t made it clear whether he would back a final measure with those issues addressed, and he told fellow lawmakers that he’d like to see a bipartisan energy deal in response to Russia’s invasion of Ukraine.
• Manchin also said any Democratic economic legislation moving on Capitol Hill should be focused on curbing rising inflation.

Failure to reach a compromise would have profound economic and political consequences. Democrats are trailing in the polls ahead of the midterm elections, and one senior administration official said that if Manchin’s stonewalling runs out the clock on Biden’s legislative agenda, the party will enter November “without anything else to offer voters.”

A majority of Americans have been infected with the coronavirus

Over half the U.S. population has been infected with the coronavirus at least once since the pandemic began, The Post’s Lena H. Sun, Dan Keating and Joel Achenbach report. 

Before omicron, one-third of Americans had been infected with the coronavirus. But by the end of February, that number had skyrocketed to nearly 60 percent — or about 189 million people, according to newly released data from the Centers for Disease Control and Prevention.

That’s significantly greater than the figure experts typically cite and more than double the 80 million cases shown by The Post’s tracker, which is based on confirmed state data. 

• CDC officials said the disparity is likely because data from the federal study uses blood tests that screen for antibodies developed in response to a coronavirus infection, not vaccine, and are able to capture asymptomatic cases and others that were never confirmed on coronavirus tests.

Kristie Clarke, the CDC official who authored the report, said by February, “evidence of previous COVID-19 infections substantially increased among every age group.” But the greatest increase was among children and teenagers through age 17 — 3 in 4 of which had been infected by February.

White House addresses Title 42

The Biden administration plans on complying with an expected court order from a federal judge that would block phasing out the pandemic-era border restrictions, Politico reports. 

This comes as administration officials outlined details of their plan for managing a surge in illegal border crossings when the pandemic restrictions are gone, such as pledging to boost criminal prosecutions and make aggressive use of fast-track deportations. Some Senate Democrats, particularly those in tight races, had raised concerns that the administration wasn’t prepared to lift Title 42, The Post’s Nick Miroff reports.

Catch up quick: The administration had previously planned to lift Title 42, a public health order used to expel migrants at the border, by May 23. But on Monday, a federal judge sided with a group of Republican-led states vying to keep the policy in place.

Meanwhile, the lawsuit hasn’t appeared to change the politics of pandemic aid. Senate Minority Leader Mitch McConnell (R-Ky.) said yesterday that there will need to be a vote soon targeting Title 42, likely to add such a policy to the $10 billion coronavirus deal. The issue has effectively stalled the swift passage of more aid.

• The Food and Drug Administration will allow NJOY to continue legally marketing four e-cigarette products, deciding their benefits for smokers who switch to the devices outweigh the risks of underage vaping.
• A top FDA official said that she believed that the agency won’t issue further contracts to consulting firm McKinsey & Co. pending investigations into the company’s alleged failure to disclose potential conflicts of interests while advising both drugmakers and federal regulators.
• On tap today: The House Committee on Oversight and Reform will release new documents that “raise even more questions” about McKinsey’s practices related to opioids, panel Chair Carolyn Maloney (D-N.Y.) plans to say at a hearing today, according to remarks shared with The Health 202.

Thanks for reading! See y’all tomorrow.