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Law360 (June 17, 2020, 9:11 PM EDT ) The U.S. government's "delay" on banning menthol cigarettes has made black Americans, historically targeted by tobacco companies for menthol cigarette use, vulnerable to new respiratory disease like COVID-19, the African American Tobacco Control Leadership Council said in a proposed class action Wednesday.
The council told a California federal judge that the Department of Health and Human Services' and the Food and Drug Administration's refusal to take menthol flavored tobacco off the shelf has led to thousands of premature deaths, especially in the African American community.
AATCLC, located in San Francisco, brought the class suit together with Action on Smoking and Health, an NGO based in Washington, D.C. The groups said the novel coronavirus is killing black Americans at a higher rate, partly because the group suffers more from lung disease and diabetes linked to tobacco use.
The NGOs said 85% of African American smokers use menthol cigarettes, and smoking-related diseases are the number one cause of death in the community. The groups also cited an April advisory from Massachusetts Attorney General Maura Healey warning that "flavored tobacco products could make lung infections like COVID-19 worse."
AATCLC and ASH said they have repeatedly called for HHS and FDA to re-evaluate tobacco product standards and ban menthol cigarettes, but the agencies have been dragging their feet despite their own finding that menthol products are harmful.
The group cited a 2011 FDA report saying that if menthol cigarettes had been removed from the marketplace in 2010, about 17,000 premature deaths would have been avoided by 2020, and about 2.3 million people wouldn't have started smoking.
For the black community, that means about "4,700 premature deaths would have been avoided, and about 461,000 African Americans would not have started smoking," the groups claimed.
The groups are asking the federal court to compel the government agencies to respond to their petition, reevaluate tobacco product standards, and rule to ban menthol cigarettes.
"By continuing to delay, the FDA and the U.S. government are failing to protect the health of U.S. citizens, particularly African Americans, and the U.S. is also falling behind the global trend as countries around the world are increasingly banning menthol," said Kelsey Romeo-Stuppy, managing attorney at ASH in a statement.
In 2009, Congress passed the Family Smoking Prevention and Tobacco Control Act that created a flavor ban in cigarettes but excluded menthol. In 2011, the FDA's advisory committee concluded that the "removal of menthol cigarettes from the marketplace would benefit public health."
Over a year ago, the FDA announced it would seek to ban menthol-flavored cigarettes to combat youth smoking, but then the plan got delayed.
"Now is the time for the FDA to step up to the plate and do what it was supposed to do years ago — prohibit the sale of all flavored tobacco products," said Phillip Gardiner, co-chair of AATCLC.
The government agencies did not immediately respond to calls seeking comment Wednesday.
AATCLC and ASH are represented by Christopher K. Leung of Pollock Cohen LLP.
Counsel for the agencies could not be determined.
The case is African American Tobacco Control Leadership Council et al v. United States Department of Health and Human Services et al, case number 4:20-cv-04012, in the U.S. District Court for the Northern District of California.
--Editing by Amy Rowe.
For a reprint of this article, please contact reprints@law360.com.
