Racial Politics Flavor Debate Over Banning Menthol Cigarettes

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Kool, introduced in the 1930s by Brown & Williamson Tobacco Co., was one of the early menthol brands, and until the 1950s the most popular. This 1937 ad was one of many that promoted Kool as soothing to the throat. (Cigarette ads courtesy of the Stanford University collection)

Lorillard Tobacco donated nearly four times as much to Republican candidates as to Democrats in the 2014 congressional elections. No surprise there — most businesses count on Republicans to hold the line on regulations and taxes.

But Lorillard made a striking exception for one set of Democrats: African Americans. It gave campaign cash to half of all black members of Congress, as opposed to just one in 38 non-black Democrats, according to an analysis by FairWarning of records from the Center for Responsive Politics. To put it another way, black lawmakers, all but one of whom are Democrats, were 19 times as likely as their Democratic peers to get a donation.

It’s not hard to see why. The election campaign overlapped a debate crucial to Lorillard: Whether to add menthol, the minty, throat-numbing additive, to a list of flavorings banned from use in cigarettes in 2009 on public health grounds. Lorillard’s Newport cigarettes have been the top-selling menthol brand, accounting for billions of dollars in annual sales. And who most favors menthols? Black smokers, by a wide margin.

For decades, the tobacco industry has maintained what amounts to an informal mutual aid pact with some black organizations. Over the years, cigarette makers have donated generously to members of the Congressional Black Caucus, and to its affiliate, the Congressional Black Caucus Foundation; to major groups like the National Urban League, the National Association for the Advancement of Colored People and the United Negro College Fund; and to a host of smaller African American organizations. In return, some of the groups have helped the industry fight anti-smoking measures. Other times, critics say, they have simply turned a blind eye to the harmful impact of tobacco on the black community.

Menthol cigarettes, once a niche product, now account for about 30 percent of U.S. cigarette sales. But a study cited by the federalCenters for Disease Control and Prevention found that menthols were the choice of 88 percent of black smokers and 57 percent of smokers under 18.

The Family Smoking Prevention and Tobacco Control Act, the landmark 2009 law that authorized the FDA to regulate tobacco products, included a ban on candy, fruit and spice flavorings because of their appeal to young smokers. But in negotiations that led to adoption of the law, menthol was given a pass. In July 2013, after complaints from public health groups, the FDA put out a call for public comments on whether menthol, too, should be restricted or banned.

Menthols account for about 30 percent of U.S. cigarette sales, but are preferred by more than 80 percent of black smokers. Newport is the most popular menthol, and second best-selling brand in the U.S. behind Marlboro.

Not a peep 

Several other countries have banned menthol or imposed deadlines for eliminating it. But not a peep has been heard from the FDA since it asked the public to weigh in more than two years ago. This past June, in a display of confidence, Reynolds American Inc., which includes R.J. Reynolds Tobacco Co., completed a merger with Lorillard, paying more than $27 billion for a company that depended on menthols for about 85 percent of sales.

The menthol limbo fits a pattern, according to public health advocates, who say the FDA has been all but paralyzed by excessive caution and, when it has tried to act, by successful legal challenges from the industry. In November 2011, the agency was blocked in court when it tried to require graphic warning labels on cigarette packs like those in at least 75 countries. And it has yet to complete the rulemaking process that would extend its oversight to cigars and e-cigarettes, which are increasingly popular among teens.

The failure to act is “inexcusable.” said Joelle Lester, a staff attorney with the Public Health Law Center in St. Paul, Minn. “Prohibiting menthol in tobacco products should be a very high priority.” Agency officials declined to be interviewed. A spokesman said in an email that the FDA “is continuing to consider regulatory options related to menthol.’’

Banning menthol would be politically difficult under any circumstances, but observers say it will be impossible without strong support from African American leadership groups. And despite support for a ban from some black public health advocates, African American politicians and organizations have been largely silent.

Joelle Lester

Joelle Lester, staff attorney at the Public Health Law Center, St. Paul, Minn.

Some of the smaller groups that have received tobacco money over the years–the National Black Police Association, the National Organization of Black Law Enforcement Executives, or NOBLE, the National Black Chamber of Commerce and the Congress of Racial Equality — have opposed a ban, claiming it would trigger illicit trade in menthol cigarettes. This, they say, would result in lost tax revenues, rising law enforcement costs and widespread arrests in the black community.The NBPA launched a write-in campaign that brought more than 36,000 comments opposing a ban, according to an FDA document. That group did not respond to interview requests. But John Dixon, a past president of NOBLE and the police chief in Petersburg, Va., said he thought banning menthol would harm “the minority community, because the majority of menthol smokers are minorities.” He added that “prohibitions cause a whole other host of problems,” including an added “burden on law enforcement.” NOBLE lists RAI Services Co., part of Reynolds American, as a current donor. But Dixon said this “would not have any influence, one way or another,’’ on the group’s positions.

A complicated relationship

The relationship between tobacco companies and black groups “is complicated,’’ said Delmonte Jefferson, executive director of the National African American Tobacco Prevention Network, a CDC-funded nonprofit.

Delmonte Jefferson

Delmonte Jefferson, executive director of the National African American Tobacco Prevention Network.

In recent years, minority groups have attracted a wider range of corporate sponsors, making tobacco funding less important. But “there was a long time that it was only the tobacco industry that would support” some of them, Jefferson said. “To do an abrupt turn against the same companies—that’s kind of hard for them to do.”While smoking rates for black and white adults are comparable, blacks suffer higher death rates from tobacco-related ailments, including some types of cancer and cardiovascular disease. According to the CDC, about 47,000 African Americans die annually from smoking-related illnesses, making tobacco use the largest preventable cause of death for black Americans.

Menthols do not appear to be any more toxic than other brands. “A menthol cigarette is just another cigarette and should be regulated no differently,” said David Howard, a spokesman for Reynolds American, in an email to FairWarning. But health authorities view menthols as a starter product, saying that menthol’s anesthetizing effect helps beginners tolerate the harshness of tobacco smoke, making them more likely to become addicted to nicotine.

“Menthol has no redeeming value other than to make the poison go down more easily,’’ said a report in the American Journal of Public Health.

New York Yankees star Elston Howard touted Kool’s throat-soothing “extra coolness’’ in this 1962 ad.

Some research also suggests that menthol smokers are more nicotine dependent and have more trouble quitting. For these reasons, said a 2013 FDA report, it is “likely that menthol cigarettes pose a public health risk above that seen with non-menthol cigarettes.” The industry disputes this. According to Reynolds’ spokesman Howard, “The best available scientific evidence demonstrates that menthol cigarettes do not cause people to start smoking earlier, smoke more cigarettes … or make smokers more addicted than non-menthol cigarette smokers.”

“African Americanization” of menthols

In any case, the industry has worked hard to befriend the black community. Early on, cigarette makers touted menthols as good for smokers with a cough or cold, and “African Americans became attached to the notion” that menthols were safer, according to public health activist and researcher Phillip S. Gardiner. The companies reinforced the popularity of Kool and other brands by sponsoring cultural events and pouring marketing dollars into black media and neighborhoods–all part of what Gardiner called the “African Americanization of menthol cigarette use.’’

The industry’s hiring practices were also progressive for their time, winning gratitude in the black community. In the 1950s the White Sentinel, a white supremacist publication, urged a boycott of Philip Morris for having “the worst race-mixing record of any large company in the nation.” It “was first in the tobacco industry to hire Negroes instead of Whites for executive and sales positions,’’ the White Sentinel lamented, and “the first cigarette company to advertise in the Negro press.’’

Phillip Gardiner

Phillip S. Gardiner, program officer with the University of California’s Tobacco-Related Disease Research Program.

Led by Philip Morris, the top U.S. cigarette maker and part of Altria Group, tobacco companies also became charitable pillars of African American cultural, educational and political organizations. In 1987, for instance, the company donated $2.4 million to more than 180 black, Latino and women’s organizations and local chapters.

Relentless discrimination

That same year, the National Black Monitor, a now-defunct magazine, published an article ghost written by an official from R.J. Reynolds, which had funded journalism scholarships for African American students and in 1985 was named advertiser of the year by a black newspaper publishers group. The article compared the treatment of tobacco companies to that of oppressed blacks.

While racial minorities no longer face “the systematized injustice they once did,’’ the article said, “relentless discrimination still rages unabashedly on a cross-country scope against another group of targets — the tobacco industry and 50 million private citizens who smoke.’’

At the annual convention of the NAACP in 2009, two members of the group’s Berkeley, Calif., branch tried to convince the organization to adopt an aggressive anti-tobacco stand. The two — Valerie Yerger, then an assistant professor of health policy at the University of California, San Francisco, and Carol McGruder, co-chair of the African American Tobacco Control Leadership Council — tried to introduce a resolution that called on NAACP leadership to make tobacco control “a national priority’’ and push for a menthol ban.

Valerie Yerger

Valerie Yerger, associate professor of health policy in the School of Nursing, University of California, San Francisco

The resolution had not been vetted in advance of the convention, as was customary, and as Yerger and McGruder recalled, their request to introduce it on an emergency basis was not well-received. The late Julian Bond, then NAACP chairman, “was not going to have any conversation with us about this,” Yerger remembered. “He was in our face yelling at us, OK? I was determined not to cry, but this was, like, a hero that I grew up with,’’ she said. “As a young black kid, you grow up knowing who the hell Julian Bond is…’’ McGruder didn’t recall Bond getting angry, but said “he wasn’t happy about it [the resolution] and he wasn’t going to entertain it.”

Amid declines in smoking and consolidation in the industry, the flow of tobacco money to minority organizations seems to have ebbed in recent years. But the industry “still has a pretty heavy influence financially,” said Jefferson of the National African American Tobacco Prevention Network.

Last year, Altria donated $1 million to the National Museum of African American History and Culture in Washington D.C., part of the Smithsonian Institution. During the 2013-14 election cycle, tobacco companies donated $115,650 to black lawmakers and their affiliated PACs, according to the Center for Responsive Politics. Lorillard was the most generous, distributing $56,500 to 23 black members (there are 46 total) and related PACs. The Black Caucus chair, North Carolina Rep. G.K. Butterfield, got $5,000 from Lorillard. Rep. Sanford Bishop of Georgia got $10,000. South Carolina Rep. James Clyburn received $2,000 from Lorillard, and his BRIDGE PAC took in $5,000 from Lorillard and $10,000 from Altria.

Executive ties

Photo of Carol McGruder

Carol McGruder, co-chair of the African American Tobacco Control Leadership Council.

Shuanise Washington is president and CEO of the Congressional Black Caucus Foundation, which sponsors leadership training, awards scholarships and hosts an annual legislative conference attended by thousands. Washington, who declined to comment for this story, is also a past vice president for Altria, which gave the CBCF between $100,000 and $249,000 in both 2013 and 2014, according to the foundation’s website. Altria spokesman David B. Sutton said the gifts mainly support the foundation’s fellowship and internship programs, reflecting the company’s “long history of focusing on diversity and inclusion.”

In addition, the foundation listed RAI Services, part of Reynolds American, as contributing between $5,000 and $15,000, and cited Altria as a corporate partner at its most recent legislative conference in September. “How can you talk about health equity,” asked anti-tobacco activist Jefferson, “when you are sponsored by a killer of public health?”

Among Lorillard’s campaign donations was $1,000 to Rep. Robin Kelly of Illinois, who heads a panel called the Congressional Black Caucus Health Braintrust. At the caucus foundation’s legislative conference, she issued a144-page report, “Health Disparities in America,’’ on health problems afflicting minority citizens. It included entire sections on childhood obesity, nutrition, HIV/AIDS, lupus, sleep disorders, oral health and gun violence. Tobacco was barely mentioned. Kelly did not respond to interview requests.

No. 1 flavor product

The 2009 legislation that gave the FDA power to regulate tobacco products grew from a deal between tobacco control groups, anti-smoking members of Congress and Altria. But the menthol exception did not sit well with some black public health advocates.

Kool ad from 2006. By then Kool was an R.J. Reynolds brand through a merger with Brown & Williamson Tobacco. (Stanford University collection)

Carol McGruder, co-chair of the African American Tobacco Control Leadership Council.

“How do you justify removing all of the flavorings which were minuscule in use … but leave the No. 1 flavor product…? It makes no sense at all,” said William S. Robinson, the former head of the National African American Tobacco Prevention Network, which withdrew its support for the bill in protest.

Seven former secretaries of Health and Human Services, including Dr. Louis W. Sullivan and Joseph Califano, weighed in with an open letter to Congress. “Menthol should be banned so that it no longer serves as a product the tobacco companies can use to lure African American children,” it read. “We do everything we can to protect our children in America, especially our white children. It’s time to do the same for all children.’’

Lorillard, which soon after agreed to donate $1 million to the International Civil Rights Center and Museum in its hometown of Greensboro, N.C., put a different spin on the social justice issue.

Self-appointed activists

“Some self-appointed activists have proposed a legislative ban on menthol cigarettes in a misguided effort to force people to quit smoking by limiting their choices,” the company said in ads in the black press. “The history of African Americans in this country has been one of fighting against paternalistic limitations and for freedoms.’’

Ultimately, Congress kicked the menthol can down the road. An amendment to the tobacco control act called for the formation of an expert panel, the Tobacco Products Scientific Advisory Committee, to study and report to the FDA on the public health impact of menthol, “including use among children, African Americans, Hispanics, and other racial/ethnic minorities.”

2009 ad for Newport, the flagship brand of Lorillard Tobacco, which in June merged with Reynolds American. (Stanford University collection)

2009 ad for Newport, the flagship brand of Lorillard Tobacco, which in June merged with Reynolds American.

The panel issued its report in 2011, concluding that “removal of menthol cigarettes from the marketplace would benefit public health in the United States.’’ The FDA, however, waited two more years before requesting public comments. Then in July 2014, the agency suffered a legal setback . A federal judge ruled that the agency could not base any decisions on the advisory panel’s findings. The ruling came in a lawsuit by Reynolds and Lorillard claiming that the FDA had violated ethics laws by appointing experts to the panel who had conflicts of interest for having previously taken anti-tobacco stands. The decision is under appeal.

The ruling didn’t bar the FDA from acting, because its own staff had prepared a separate report that reached essentially the same conclusions. But for reasons agency officials won’t discuss, nothing has happened since.

Some activists have given up on the feds and moved on to local campaigns. In December 2013, for instance, the Chicago city council passed an ordinance barring the sale of flavored tobacco products, including menthol cigarettes, cigars and e-cigarettes, within 500 feet of schools. In Berkeley, Calif., a ban on the sale of menthol and other flavored tobacco products, including e-cigarettes, within 600 feet of schools will take effect in 2017. Similar legislation has been proposed in Baltimore.

“I’m not expecting anything” from the FDA, said McGruder, one of the activists rebuffed by the NAACP. “I don’t think that they have … the guts.’’

Douglas Weber of the Center for Responsive Politics contributed to this story.