(This story is published in partnership with The Examination. Sign up to get The Examination’s reporting in your inbox.)
Sometimes you can win an argument just by repeating yourself over and over.
That’s a lesson from the tobacco industry’s battle with the Biden-era Food and Drug Administration over its proposed ban on menthol cigarettes.
After the FDA drafted language to outlaw the manufacture of the mint-flavored cigarettes in 2022, it asked for public comments — and was hit with an avalanche of 175,000 messages over three months.
Of those, 97% were form letters opposing the ban, according to a new study by researchers at Rutgers University that was published last month in JAMA Network Open. Nearly half of the letters had the same language as campaigns run by tobacco giants Altria Group Inc. or Reynolds American, researchers found. Most of the rest echoed industry talking points. Just 2% of the letters were unique.
The tactic of showering regulators with the same talking points is not new. The tobacco industry has done it since at least the 1980s, when it bombarded a federal agency with letters opposing airline smoking restrictions. Nor is it limited to cigarettes: When the Federal Communications Commission considered “net neutrality” rules in 2017, one college student filed more than 7.7 million comments.
Such campaigns usually have little effect on rulemaking because agencies typically consider the substance of comments rather than the volume, said Steven Balla, co-director of the Regulatory Studies Center at George Washington University. “You can imagine a case where there are a million ‘I hate this rule’ comments,” Balla said. “But the agency’s response will mostly be to the handful that are substantive.”
What’s novel about the menthol campaign is that the tactic seems to have worked.
After the public comment period closed in August 2022, the FDA issued a statement saying it would “need ample time to comprehensively review and analyze all of the comments.” The agency, which did not respond to requests for comment for this article, missed its deadline to issue the rule the following August and set a new deadline of March 2024.
By then, the FDA’s public health concerns about menthol cigarettes, which make up more than a third of all cigarettes sold in the U.S., had run head-on into efforts to get President Biden re-elected. He needed the support of Black Americans, a key market for menthol cigarettes.
In late 2023, a conservative organization bought television ads criticizing the proposal. Meanwhile, the White House scheduled dozens of meetings with various groups. Among them were law enforcement and civil rights organizations that had received money from the tobacco industry and opposed the ban over concerns it would lead to illicit sales and biased policing. (Researchers have not found any such outcome in Canada or the European Union after governments there banned menthols.)
The March 2024 deadline passed without action. That April, the Biden administration indefinitely postponed the ban, citing the vast public response — one that the Rutgers study concluded were nearly all form letters.
“This rule has garnered historic attention and the public comment period has yielded an immense amount of feedback,” said Xavier Becerra, secretary of the Department of Health and Human Services at the time. “It’s clear that there are still more conversations to have, and that will take significantly more time.”
Becerra, now a candidate for governor of California, did not respond to requests for comment sent to his campaign.
The proposed ban was officially scrapped the following year, after President Trump took office.
‘Genuine responses’
The Biden administration had proposed the ban in part because of menthol cigarettes’ disproportionate effect on the health of Black Americans.
The tobacco industry has cultivated the appeal of menthols in the Black community for decades. Starting in the 1960s, Brown & Williamson and rival tobacco companies used tactics like sponsoring jazz festivals, advertising in magazines like Ebony and distributing free samples to Black residents and even children. The industry also built ties with Black leaders by donating to civil rights groups and Black politicians.
Today, about 80% of Black smokers use menthols. Though Black smokers tend to start later in life and consume fewer cigarettes each day than their white counterparts, they fall ill and die at higher rates, according to the Centers for Disease Control and Prevention. Between 1980 and 2018, menthols were responsible for 157,000 smoking-related deaths among Black Americans, according to research by the University of Michigan.
The proposed rule would have banned manufacturers from using the menthol compound, which cools and numbs the throat and airway, making cigarette smoke less harsh. Research has shown that menthols are more likely to addict young smokers and that a ban could avert 650,000 early deaths over four decades.
The letters opposing the ban largely didn’t address health concerns, the Rutgers researchers concluded.
Instead, those letters repeated industry arguments that smoking menthols is “a matter of adult choice” or that a ban would “increase crime, reduce tax revenues, and hurt small businesses.”
Tens of thousands of the letters were generated by public relations campaigns by Reynolds American, maker of Newport, and Altria, maker of Marlboro Menthol, researchers found. Newport and Marlboro Menthol are the two largest menthol brands in the U.S., according to Tobacco Insider, an industry advisory firm.
The study noted that because most letters didn’t have identifying information, “it is unclear whether these comments reflect genuine responses from citizens.”
Neither Altria nor Reynolds American responded to requests for comment about the form letters.
Phillip Gardiner, the co-chair of the African American Tobacco Control Leadership Council, placed part of the blame for the ban’s defeat on lobbying by civil rights leaders with ties to the tobacco industry. But the barrage of comments was also key, he said. Between the menthol cigarette rule and a related proposal to end the sale of flavored cigars, the FDA received nearly a quarter million form letters.
“They sent in 250,000 letters and our organization sent in one,” said Gardiner, whose group unsuccessfully sued the FDA in 2024 to try to force it to implement the menthol ban. “How do you counter that?”
In this case, the flood of public comments gave the Biden administration a way to back away from a policy it previously supported, said Eric Lindblom, a former senior official at the FDA’s Center for Tobacco Products in the Obama administration.
The idea that the White House or the FDA needed more time to consider form letters is “absolute nonsense,” he said. The law allows an agency to issue a single response to millions of identical comments, he said. And the FDA had conducted extensive reviews of menthols twice in the prior decade, concluding as early as 2013 they likely posed a bigger public health risk than other cigarettes.
“They always cite something like that: ‘We need more time to consider these arguments,’” said Lindblom, who is now at the O’Neill Institute for National and Global Health Law at Georgetown University. “Nobody’s going to come out and say, ‘We’re not going to issue this rule because it’s going to hurt us in the election.’”