FDA ban on menthol combustible tobacco products could be upheld in court

A study has concluded that the court could uphold the FDA ban of menthol combustible tobacco products after a lengthy legal process.

The paper published in Public Health Reports by scientists at Rutgers University anticipates the arguments that could be put forward by the tobacco industry. The study then weighs the strength of the scientific evidence justifying a menthol ban. Finally, it considers the potential for illicit trade to undermine the effectiveness of a menthol ban.

Taking all this into consideration, scientists conclude that the FDA ban on menthol cigarettes will be upheld by the court. About half a year earlier in late 2018, then FDA Commissioner Scott Gottlieb showed commitment to a menthol ban late in 2018 that had not been displayed by the FDA before. There is no indication that his surprise resignation in March 2019 will alter the FDA’s course or priorities.

Scientific evidence has shown that menthol cigarettes are particularly nefarious because the tobacco industry designed them as ‘starter products’ that mask the harshness of smoking. Further the FDA has the scientific evidence and legal power to pull these deadly products from the market.

Even if the FDA proceeds expeditiously, the rulemaking process may take at least two years without including potential litigation delays. In the meanwhile, local jurisdictions like San Francisco have banned the sale of menthol and other flavored tobacco products. A New Jersey law would be justified by the same scientific evidence that supports an FDA rule. Even though the legal analysis differs for a state law, similar laws in other jurisdictions have been upheld consistently.