07/13/2009 05:12 am ET | Updated May 25, 2011

Menthol Fight Underreported In Landmark Cigarette Bill

As the New York Times reports this morning, a bill allowing the Food and Drug Administration to "impose potentially strict new controls" on the tobacco industry has made it through the Senate. As the House had already passed a similar bill back in April, it seems certain that the measure will reach President Barack Obama's desk -- a measure he says he will sign into law. The Times quotes Clifford E. Douglas, from the University of Michigan's Tobacco Research Network as saying, "This is a historic step changing the nature of tobacco in society forever." And yet, a troubling and underreported aspect of this bill concerns a matter that seems rooted in past practices.

At issue is a bit of legislative horse-trading that the Altria Group -- parent company of tobacco industry giant Philip Morris -- managed as the bill was being negotiated, and having won their point, agreed to the measure, ensuring its success. Today's Times piece makes glancing mention of it:

But the law would give the F.D.A. power to set standards that could reduce nicotine content and regulate chemicals in cigarette smoke.

The law also bans most tobacco flavorings, which are considered a lure to first-time smokers. Menthol was deferred to later studies.

Health advocates predict that F.D.A. standards could eventually reduce some of the 60 carcinogens and 4,000 toxins in cigarette smoke, or make it taste so bad it deters users.

As it turns out, this would be one of those occasions when the New York Times might consider reading their own paper. Stephanie Saul, reporting last year, wrote a pair of articles that take on this matter head on.

'Cigarette Bill Treats Menthol With Leniency,' May 13, 2008:

Some public health experts are questioning why menthol, the most widely used cigarette flavoring and the most popular cigarette choice of African-American smokers, is receiving special protection as Congress tries to regulate tobacco for the first time.

The legislation, which would give the Food and Drug Administration the power to oversee tobacco products, would try to reduce smoking's allure to young people by banning most flavored cigarettes, including clove and cinnamon.

But those new strictures would exempt menthol -- even though menthol masks the harsh taste of cigarettes for beginners and may make it harder for the addicted to kick the smoking habit. For years, public health authorities have worried that menthol might be a factor in high cancer rates in African-Americans.

The reason menthol is seen as politically off limits, despite those concerns, is that mentholated brands are so crucial to the American cigarette industry. They make up more than one-fourth of the $70 billion American cigarette market and are becoming increasingly important to the industry leader, Philip Morris USA, without whose lobbying support the legislation might have no chance of passage.

"I would have been in favor of banning menthol," said Senator Judd Gregg, Republican of New Hampshire, who supports the bill. "But as a practical matter that simply wasn't doable."

Right. No matter the effect on public health, you wouldn't want to make Perfect the Enemy of Good, right? Despairingly, this is the attitude echoed by William Robinson, the head of the National African American Tobacco Prevention Network, who, in Saul's article, says: "The bottom line is we want the legislation...But we want to reserve the right to address this issue at some critical point because of the percentage of people of African descent who use mentholated products."

And it is a critical point, that Saul touched on in July's New York Times, in an article titled "Black Caucus Seeks Limits on Menthol Cigarettes":

Menthol is a racially charged additive, in part because of the tobacco industry's heavy marketing of mentholated cigarettes to African-Americans since the 1950s. The flavor helps to mask the harsh taste of cigarettes and may make it easier to start smoking,

Menthol brands account for 28 percent of the $70 billion American cigarette market. While only 25 percent of white smokers choose menthol cigarettes, an estimated 75 percent of African-American smokers do.

The Centers for Disease Control and Prevention and other public health officials have raised concerns about the possibility that menthol cigarettes might increase tobacco addiction and possibly cancer rates among black smokers.

There is also evidence that some menthol brands, including Newport, contain among the highest level of nicotine of leading cigarettes. Some experts believe that higher nicotine levels increase the addictiveness of cigarettes.

And in July, despite the fact that tobacco company Lorillard is depicted as the company that "would stand to lose the most from a ban on menthol," and the most aggressive opponent to the prospect of such a ban, Saul makes special note of who the real heavy hitter in the room is:

Some lawmakers have said the decision to exempt menthol from the bill's flavorings ban was intended to win support for the legislation from Philip Morris, the country's dominant tobacco company, whose Marlboro Menthol is the second-leading menthol brand.

Well, what is the Times saying about the company today?

Publicly, Altria pushed the legislation for "the greater predictability and stability we think it will bring to the tobacco industry," as a spokesman, Brendan J. McCormick, said this week.

But the impulse dates to the 1990s, when according to Philip Morris documents released during lawsuits, the company decided to remake its image as a responsible corporate citizen. Part of that strategy was to advocate legislation to reduce the risks in cigarettes, and avoid smoking's being outlawed outright.

Moreover, as the industry's richest company, with profits last year of more than $3 billion, Altria, based in Richmond, Va., has built an extensive scientific research operation. It may thus be the company best equipped to deal with the F.D.A.'s new review process for new, ostensibly safer tobacco products.

This strikes me as a fig-leaf take on the matter. The very fact that Altria/Philip Morris pushed to get a menthol ban out of the legislation gives the lie to the idea that they are bent on being a "responsible corporate citizen" willing to "reduce the risks" in cigarettes. Their lobbying on behalf of menthol clearly indicates neither is of a particular concern. Chances are, however, that Philip Morris just managed to keep their true motivations hidden from the Times.

Or, maybe not.

As Altria's competitors have repeatedly argued in opposing the legislation, Altria stands to retain more market share if the advertising crackdown makes it harder for other companies to improve their sales standing.

Oh, well. At least the black community can count on the Congress to revisit the issue, and perhaps decide at a later date that menthol should be treated like any other tobacco flavoring, right?

Actually, it's not even clear that the bill, as passed, will survive! Check out how Altria/Philip Morris -- good corporate citizen and risk reducer -- looms over a potential threat to the bill they so kindly helped to shepherd through.

Yet, even Altria said Thursday the legislation, while "an important step forward," was "not perfect." The Association of National Advertisers says the act's "unprecedentedly broad advertising restrictions" violate First Amendment protections for commercial speech. Legal experts say a court challenge on that ground is virtually certain.

The important point is this, having won the day, what do you think the chances are that our good corporate citizen, Altria/Philip Morris, will actually voluntarily give up menthol additives -- or even cotton to the issue being revisited -- just to do right by the black community? If Congressional compromise and the Times' short memory are any indication, they aren't very high.

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