Where does menthol cigarette ban stand? Inside the high-stakes battle at Biden's door.

NEW YORK – On his Brooklyn stoop, Marcel Bichotte could hold notes on his saxophone for what felt like hours.

Bichotte was an accomplished musician with the big-band group Super Jazz des Jeunes, or Jazz of the Young, in his native Haiti. In the 1960s, he moved to the U.S., where he had day jobs in textiles and security. In New York, he started smoking menthol cigarettes. His daughter, New York Assemblymember Rodneyse Bichotte Hermelyn, said he smoked a pack a day.

The long notes ended after her father became addicted to menthols, she said. He developed debilitating respiratory problems and died at age 73 from lung and throat cancer.

“This is what tobacco can do to you,” the assembly member told USA TODAY. “It can end your ability to breathe.”

Bichotte Hermelyn sees her father's death as a targeted strike on a Black man in a community targeted for years by the makers of menthol cigarettes.

The Brooklyn lawmaker is backing a measure to ban the sale of menthols and other flavored tobacco products in her state as the Biden administration stalls on a separate plan to ban menthols nationwide. Both the New York and the federal ban face opposition from the deep-pocketed tobacco industry and civil rights groups, who fear a ban will prompt a crackdown on vendors and smokers.

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Bichotte Hermelyn and others say a menthol ban would address a festering injustice, providing long overdue respite to Black smokers who were targeted for decades by companies selling menthol cigarettes. Menthols produce a minty, cooling sensation believed to make them more addictive than other tobacco products.

Studies show menthol use has disproportionately affected Black smokers, who are more likely than white smokers to choose them. Black people are also more likely than white people to die from lung cancer.

The counterargument to menthol bans also centers on upholding Black people's rights. Organizations such as the Rev. Al Sharpton’s National Action Network and the National Organization of Black Law Enforcement Executives say a ban would criminalize menthol smokers because it would unfairly police people who sell and use them.

The ban has generated a showdown between tobacco control groups who want to reduce smoking deaths and the tobacco industry seeking to protect its turf.

The conflict has reached the Biden administration's Office of Management and Budget, stalling its effort in December to finalize a rule to ban menthol. That decision was bumped to this month, and it remains pending.

'Not targeting the other neighborhoods'

Gwen Carr, whose son Eric Garner was selling loose cigarettes when police killed him, opposes menthol bans over concerns they'll harm Black communities, where people prefer menthols. She believes curtailing tobacco use is a good thing but worries about unintended consequences.

"They are not targeting the other neighborhoods, they are targeting the Black neighborhoods," Carr told USA TODAY. "If they were talking about banning all cigarettes, then we would have a different conversation."

The tobacco industry lobbyists who formed alliances with civil rights groups have defeated proposed bans in various communities. Tobacco watchdog groups that cheered bans in California and Massachusetts on flavored tobacco, including menthol, worry their best shot at a national ban is slipping away because of these conflicts.

"Just how long are you going to wait to do something when you've had the evidence for a decade or more?" said Cheryl Sbarra, executive director of the Massachusetts Association of Health Boards. "It is very frustrating."

Public health experts say a national ban would reduce harm to all Americans, particularly Black Americans who are more likely to smoke menthol cigarettes and suffer disproportionately high cancer rates. About 85% of Black smokers use menthol cigarettes, compared with about 1 in 3 white smokers.

Nowhere has the political fight played out more publicly than in New York, where Garner died in a police chokehold in 2014 after officers stopped him for selling cigarettes.

New York City rejected a menthol ban in 2019. In 2022, lawmakers in suburban Westchester County, north of the Bronx, passed a menthol ban bill, which County Executive George Latimer vetoed. As The Journal News/lohud, part of the USA TODAY Network, reported, the measure proposed by a Black lawmaker split Black and Latino legislators in an overwhelmingly Democratic county.

Though he supported lowering tobacco use overall, Latimer, who is white, saw the question as both jurisdictional and cultural. The region borders New York City and abuts Connecticut and New Jersey, across the Hudson River, where menthol sales are allowed. A ban would therefore be hard to enforce, he said.

But Latimer also shared the concerns of Black residents who feared they’d be criminalized by a menthol ban, and Middle Eastern and North African residents, who worried about flavored tobacco products no longer being allowed.

“Before you try to impose the solution legislatively, or by law, you ought to determine if you can move popular opinion in the direction of what you're trying to accomplish,” said Latimer, a Democrat now running for U.S. Congress. “If you run headlong into popular opinion, you should step back and look at other strategies.

“The popular will of the people that supposedly we’re protecting, they weren't in favor of it.”

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Top menthol seller funds civil rights groups

About two weeks before the Biden administration tabled plans for a nationwide ban, White House officials met with prominent Black leaders concerned about banning menthol.

Dwayne Crawford, executive director of the National Organization of Black Law Enforcement Executives, requested the teleconference also attended by former North Carolina congressman G.K. Butterfield, National Newspaper Publishers Association President Dr. Ben Chavis, civil rights attorney Ben Crump, former Florida congressman Kendrick Meek, and National Action Network senior vice president Ebonie Riley.

Through a spokesperson, Crawford declined to discuss the meeting and his group's stance.

Sharpton made public statements on multiple occasions opposing New York's proposed ban but has maintained a lower profile over the national ban. Riley, from the National Action Network, has been the group's public face in opposing the larger ban.

In a statement, Riley said the civil rights group has "followed the lead" of Carr, Garner's mother.

She said Carr, Crump and others "have raised concerns that this ban will lead to the unintended consequences for Black people selling loose cigarettes."

Sharpton faced criticism during the debate on the New York ban when The New York Times reported his organization took money from the tobacco industry. Sharpton's group declined to say how much funding it has received from the tobacco industry.

"As a policy, we do not disclose the amount financial supporters have given," Riley said in a statement.

Carr, the mother of Garner, said she has not received funding from tobacco industry groups. She also hasn't communicated with White House officials about the national ban.

Luis Pinto, vice president of communications for Reynolds American Inc., acknowledged the company has funded the National Action Network.

"Historically, we did fund them," Pinto said. "We no longer fund them directly."

NOBLE, the law enforcement group, lists Reynolds and Altria among its corporate sponsors on its website. Reynolds still sponsors the group, Pinto said.

Pinto said Reynolds, which sells the top-selling menthol brand Newport, supports groups that are important to the company's customers. The company does not make its financial contributions contingent upon organizations maintaining a position, Pinto said.

"There is no quid pro quo from us funding you to the stances that you take," Pinto said.

Reynolds has said banning menthol cigarettes is an ineffective way to help smokers quit smoking or transition to other products.

"Reynolds has been clear on where it stands on this topic – we strongly believe there are more effective ways to deliver tobacco harm reduction than banning products," Pinto said.

Tobacco watchdog: 'Overpolicing ... an overreach'

The NAACP has worked with tobacco watchdog groups to pressure the Biden administration to enact a menthol ban. Backing a ban is the majority position in Black communities, according to a poll from the Campaign for Tobacco-Free Kids and conducted by the political research firm The Mellman Group. It found that 62% of Black voters support the FDA’s proposed ban on menthol cigarettes, while 25% oppose the ban.

NAACP President and CEO Derrick Johnson urged the Biden administration to consider the surveys and statements of prominent Black leaders who support a ban and the years of research showing the tobacco industry has targeted Black communities. Black Americans are concerned about their health and want to limit the harmful effects of menthol smoking, he said.

“The African American community will choose health and life over flavored cigarettes,” Johnson said. “That's really important for this administration to understand as they consider the next step in their rulemaking.”

Yolanda Richardson, president and CEO of the Campaign for Tobacco-Free Kids, finds the tobacco industry's approach to the debate especially pernicious. The tobacco companies have raised concerns in the Black community that a ban might prompt police to crack down on illicit cigarette sales, she said: “They've been able to craft an argument that they think resonates, particularly in the African American community,” Richardson said.

Richardson emphasized that the proposed federal rule does not include targeting individual people. Instead, it would prohibit the tobacco industry and retailers from making, distributing or selling menthol cigarettes.

“The overpolicing argument is such an overreach as to almost be laughable,” Richardson said.

She added the policing argument ignores the reality many Black smokers face. The real risk, she said, is more Black smokers getting hooked or delaying quitting and more cases of lung cancer and exacerbated health inequities.

On Friday, the U.S. Health and Human Services Department issued a 28-page report on smoking cessation that did not address the menthol and flavored cigar ban.

Harold Wimmer, CEO of the American Lung Association, described the report as "hollow unless President Biden stands up to the tobacco industry and finalizes the rules to end menthol cigarettes and flavored cigars."

Menthol excluded from earlier flavor ban

In 2009, Congress passed the Tobacco Control Act, which empowered the Food and Drug Administration to regulate tobacco manufacturing, distribution and marketing. With that newfound power, the FDA enacted a ban on flavored tobacco products, often preferred by young smokers to counteract the harsh taste of tobacco. The 2009 rule excluded menthol cigarettes. Two years later, an advisory committee said a menthol ban would benefit public health, but it was never enacted amid pressure from opponents.

In 2020, the FDA took action against flavored vaping products based on reports that millions of teens and underage kids were vaping. Flavors like mango and fruit were an overt attempt to market to underage vapers, tobacco watchdogs said.

But the FDA’s second ban on flavored products once again excluded menthol.

Dr. Keith Wailoo, a Princeton University history and public affairs professor, has studied tobacco company marketing in Black communities. He says concerns about the ban being overpoliced don't hold water.

Civil rights leaders have argued the ban would create an underground trade for menthol cigarettes, but the national menthol ban rule does not prohibit people from possessing cigarettes. The FDA has said its rule would only prohibit manufacturers and retailers from making or selling menthol products.

Wailoo said arguments against banning menthol and restricting other tobacco products originated with the tobacco industry and have been echoed by organizations funded by tobacco companies.

“What we’re facing is a familiar story in the history of tobacco,” said Wailoo, who tracked the history and marketing of menthol cigarettes in his book "Pushing Cool: Big Tobacco, Racial Marketing, and the Untold Story of the Menthol Cigarette."

The tobacco industry's “cultivated messaging” has been picked up by others, who talk about the harms of restricting sales or reining in marketing practices, Wailoo said.

“When you scratched the surface, what you saw is that they were actually singing from a script that the industry had created,” Wailoo said.

Richardson is disappointed the federal ban is stalled despite documented harm to Black communities and despite prominent doctors and leaders calling for a ban.

“If every other flavor is banned, what does that say about your commitment to protect the health of Black people?” Richardson said.