Menthol ban?

by Carl V Phillips

It is not actually about THR, but as such big tobacco news it is worth commenting on.  By the time you read this, those of you who follow the topic will probably have already heard that this morning, the US Food and Drug Administration’s Tobacco Products Scientific Advisory Committee recommended that menthol cigarettes be banned because it would benefit public health.

[Update:  There has been much legalistic/political talk about how they did not really recommend a ban.  See my later post about this.]

Perhaps insiders have a good reason to believe that this will not actually be done, since the stock price of Lorrilard (a company whose business is basically selling menthol cigarettes) has gone up since the announcement was made.  But lots of people were also predicting that the committee would not make this recommendation.  Being a political panel more than a scientific one, despite the name, it was assumed that they would not put the FDA in the position of having to overrule one of their major recommendations, which would be embarrassing for all involved.

Others, who believe that the panel actually acts based on science despite ample evidence to the contrary, thought they would have to recommend against a ban based on the fact that smoking menthol cigarettes does not have a detectable difference in risk compared to smoking other cigarettes.  But from a scientific perspective, given what the law say, the committee was undoubtedly right, and those arguing that menthol creates no harm are clearly wrong.  As I have been trying to tell people for almost a year, though apparently without creating much impression, the law was written so that a ban would be called for if there was any increase in risk at the population level, not for an individual smoker choosing one or the other.  And there clearly is.

I know that there are studies that purport to show that menthol cigarettes are “not more addictive”, are not more attractive to teens, all menthol smokers would switch rather than quit, and other similar absurd claims.  But claims that these results show that banning menthol would have no effect are just extremely naive bad science.  We know that because banning menthol is one of the many things that would lower the benefits of smoking for some smokers, and anything that lowers the net benefits of an activity will reduce the demand for it.  Whatever the studies might say, somewhere out there is one menthol smokers who is right on the fence about quitting, and the lowering of quality of the smoking experience by removing menthol is just enough to push her to quitting.  So from the perspective of population health people are a bit less healthy, since there is no conceivable way that banning an ingredient could increase demand.  This, of course, ignores the huge cost that comes from making a lot of menthol smokers’ lives less happy, in exchange for no benefit (though the FDA committee members generally favor punishing smokers, so they probably consider this a positive effect too).

As I have pointed out before, the law that allows or mandates changes that improve population health (regardless of other costs) means that FDA would be authorized to require that all cigarettes sold be bright pink or smeared with dog feces.  Neither of these would make each cigarette more healthy to smoke, but they would lower the benefits of smoking and thus cause at least a few people to quit.  I think people thought I was joking when I made points like this.  I suspect they might be changing their minds now.

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  • Bill Godshall  On March 18, 2011 at 1:10 pm

    TPSAC’s recommendation that “removal of menthol cigarettes from the marketplace would benefit public health in the United States” isn’t supported by the evidence, and I’d be shocked if the FDA proposed banning menthol cigarettes.

    The committee failed to consider the many enormous negative ramifications of a newly created black market (including the possibility that black market menthol cigarettes could be less expensive than the currently taxed and regulated ones), as well as the loss of many important federal, state and local health and healthcare programs that are funded by tens of billions of dollars from menthol cigarette tax and settlement revenue.

    The FDA and TPSAC squandered a year they should have spent promulgating regulations that reduce morbidity and mortality, like informing smokers that smokefree tobacco/nicotine products are far less hazardous alternatives to cigarettes.

  • Carl V Phillips  On March 18, 2011 at 1:40 pm

    Bill, as I am sure you and anyone else who knows/reads me knows, I agree that FDA and TPSAC are being anti-public-health in many ways, including failing to encourage (indeed, endeavoring to discourage) THR. I disagree with your point about the loss of revenues — funding is fungible, and even if money is lost from one tax stream for whatever reason, it is only lost from health services if that is the political decision. Despite the rhetoric, taxes are never hard-linked to a particular expenditure (this is the current myth the Republicans are pushing about Social Security). Also, obviously, if cigarette taxes are lost because people are not consuming cigarettes, the net health effect is positive even if the taxes are taking straight from medical financing.

    As for the main point there, I will rephrase it as “it is one thing to say that removing menthol from all cigarettes would reduce population health impacts of smoking” but “it is another thing to say that a ban on legal menthol would have net positive impacts.”

    To address the first bit of that, I stand by what I said, without any hesitation. If menthol were simply gone, fewer people would smoke. Despite what various people, including Samet (I tweeted about this) naively say about this claim not being supported. It is simple economics.

    As for the second bit, there is a legitimate hypothesis that banning menthol in legal products would expand the black market, and a legitimate hypothesis that an expanded black market would increase total health effects. I agree that this is plausible. I am not sure that is exactly what the TPSAC committee was supposed to address (there is some ambiguity about whether they were just addressing the first bit or whether they were responding to the overall picture, and the both the law and their ability to make precise scientific statements are fuzzy enough that there is ambiguity).

    So we are left with the practical empirical question: Will a menthol ban increase the incentives to buy on the black market, which already exist, not just enough to eliminate the “if I cannot have my menthols, I am not going to smoke effect”, but is actually going to overshoot that point and increase consumption (or, less compellingly, replace slightly healthier Newports with slightly less quality-controlled black market product)? It seems to me that this hypothesis has to be based on an economic model where either (a) buying from the black market has a fixed activation cost, and once you are tipped into paying that, you become a black market consumer and buy cheaper smokes, and thus more of them, or (b) the suppliers face a similar activation cost, and the increased market created by being the only supplier of menthols make the black market more extensive and efficient, and thus it ends up supplying more cheaper smokes.

    These are both possibilities, but they strike me as fairly speculative. Due primarily to punitive taxes, there is enormous incentive for consumers and producers (aka criminals) to have a black market now, and I just do not see this being such a sea change in that. So when people say “it is purely speculative that some people would choose to not smoke if they cannot get their menthols” the are simply wrong, based on simple economics. When someone says “this will expand the black market to the point that it tips past compensating for the effect of causing some menthol smokers to quit and increases consumption”, that is a very strong economic claim that is not supported by any evidence I am aware of.

    It might be true.

    But I doubt it.

    I am pretty sure that smearing all legal cigarettes with dog feces, while it would certainly increase the black market, would have a net positive public health effect. That does not mean it is an acceptable thing for government to do. It would harm people and violate their liberties, and is, frankly, deplorable (I am talking about any effort to intentionally lower the quality of cigarettes, whether it involves all flavors (cf. Canada), menthol, or feces). but the simple scientific question is different from the ethical one.

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