Concerns About Public Health Agency’s Motivations for Menthol Ban Drive Lawsuit

Concerns About Public Health Agency’s Motivations for Menthol Ban Drive Lawsuit

  • April 17, 2024
Watchdog goes to court for records surrounding the influence of politics in public health rule

The only thing more mysterious than the fate of the Biden Health and Human Services (HHS) proposed menthol cigarette ban is the whereabouts of internal documents about it. The White House has missed two self-imposed deadlines to formally announce the action and seems inclined to put it off until after the November election. HHS has missed five chances to produce records and communications about the ban and show no signs of voluntarily complying with the law.

In December 2023, government watchdog Protect the Public’s Trust (PPT) submitted FOIA requests to HHS and its subdivisions, the Food and Drug Administration (FDA) and the Centers for Disease and Control (CDC), seeking records related to the proposed ban on menthol flavored cigarettes and the research supporting it. The agency refused its duty to comply with any of them, without providing reasons, and leaving PPT no choice but to file a lawsuit for responsive records.

PPT sought the records to discover whether the decision was based on science or politics and to help the public understand the reasoning behind the highly controversial proposal. A menthol ban would inordinately impact black consumers, and some activists, including Rev. Al Sharpton, are against prohibition. Gwen Carr, whose son Eric Garner, was killed in 2014 by NYPD officers trying to arrest him for selling “loosie” cigarettes, has said, “Menthol has not killed anyone; it’s nicotine. If you’re going to ban smoking, don’t make it a racist thing. Ban it all or ban none.”

The CDC’s own numbers say 81 percent of black smokers use menthol cigarettes, far more than twice the percentage of white smokers who do. The White House has other numbers to worry about. According to The Washington Examiner, “A poll released when the ban was first proposed found that between 50% and 52% of voters in three swing states oppose it, while only between 28% and 31% are in support.” One last troubling number for President Biden: Back in January, his support among black voters was at 63% — 24% lower than his 2020 share of their vote.

Given the ban’s unpopularity, the agency’s refusal to produce documents in response to legal FOIA requests suggests the existence of information or discussions HHS doesn’t want the American public to know about. Such opacity is common when it comes to HHS and tobacco. PPT has highlighted the amount of money the FDA receives in user fees and their refusal to say how it spends those user fees.

“Important public health regulations – particularly when discussing bans of an otherwise lawful product – should be primarily informed by science and public health, not polling and politics,” said PPT Director Michael Chamberlain. “In the case of the controversial menthol ban, HHS has not been forthcoming with records letting the public know whether its rulemaking is grounded in good policy or in anticipation of the next election. Unfortunately, we have been forced to take the agency to court to find out.”