By Michael Freiberg, Tobacco Control Legal Consortium

Menthol cigarettes have been used for years to target vulnerable populations and are consumed by nearly half of all youth smokers.  The cooling properties of menthol reduce the harshness of tobacco and the irritation of nicotine in cigarettes.  As a result, menthol cigarettes are a popular choice among those first starting to smoke.  Indeed, menthol cigarettes are the source of addiction for nearly half of all teen smokers.  These products are also used at disproportionately higher rates by communities of color.  It is therefore no surprise that the Tobacco Products Scientific Advisory Committee, the committee created by Congress in part to examine the health effects of menthol, concluded in 2011 that “removal of menthol cigarettes from the marketplace would benefit public health in the United States.”

Yet when Congress prohibited most cigarettes with flavorings as part of the 2009 Family Smoking Prevention and Tobacco Control Act, it exempted the most important flavoring of all: menthol.  Worse, the U.S. Food and Drug Administration, the federal agency with authority to regulate tobacco products in ways that improve public health, has taken no action to date on menthol.

State and local governments are beginning to fill the gap created by federal inaction on menthol.  The city of Chicago has prohibited the sale of mentholated tobacco products near schools.  A recent bill in the Hawaii Legislature proposed going one step further by prohibiting the sale of menthol flavored cigarettes altogether.  But are these actions within the authority of state and local governments?  We believe that they are.

As Chicago’s ordinance demonstrated, policy options short of a sales prohibition could also help reduce the use of mentholated tobacco products.  These could include:

  • Restrictions on which establishments can sell mentholated tobacco products;
  • Restrictions on the time, place, or manner of the marketing of mentholated tobacco products, provided the restrictions are consistent with the First Amendment;
  • Increasing the price of mentholated tobacco products compared to other tobacco products;
  • Other price-related regulations, such as prohibitions on multi-pack discounts, and restrictions on the redemption of coupons that lower the price of mentholated tobacco products;
  • Information reporting, such as requiring tobacco companies to disclose data that would help indicate whether menthol tobacco products are being targeted to low income or other priority populations in a jurisdiction; or
  • Raising the age to purchase menthol tobacco products.

To learn more about policy options to reduce the impact of menthol tobacco products, visit the Tobacco Control Legal Consortium website. Michael Freiberg is a Staff Attorney at the Tobacco Control Legal Consortium, an award-winning legal network for tobacco control policy. He is working on two research projects related to menthol in tobacco products and cigarette butt litter.