The FDA put together wording to make menthol cigarettes against the law in 2022, and the public comment period brought in 175,000 messages over three months. A Rutgers University study found that 97% of those letters were form letters opposing the ban. Almost half of them carried the same wording as campaigns run by Altria Group Inc. or Reynolds American.
The Form Letter Flood
This strategy can be traced back to the 1980s, when tobacco companies flooded a federal agency with complaints about airline smoking restrictions. In 2017, one college student submitted more than 7.7 million comments while regulators were considering net neutrality rules. Steven Balla, co-director of the Regulatory Studies Center at George Washington University, said these campaigns typically fail to sway agencies because they weigh substance over volume.
“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.”
When the comment period ended in August 2022, the FDA announced it required “ample time” to review the comments it had received. It failed to meet its deadline for issuing the rule the next August, so it established a new target date of March 2024.
Politics Set Against Public Health
The FDA’s public health worries about menthol cigarettes came up against efforts to get President Biden re-elected by March 2024. Black Americans make up a key market for menthol cigarettes. A conservative group bought television ads against the proposal in late 2023.
The White House arranged many gatherings with groups, among them law enforcement and civil rights organizations that had taken money from the tobacco industry and were against the ban. Studies have shown no illegal sales or unfair treatment by police in Canada or the European Union following their menthol prohibitions.
April arrived with no action from the Biden administration on the March 2024 deadline, and the administration instead put off the ban indefinitely. The administration cited the vast public response for the delay, a response that the Rutgers study concluded was 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, then secretary of Health and Human Services. “It’s clear that there are still more conversations to have, and that will take significantly more time.”
The governor’s race contender Becerra has yet to answer requests for comment directed at his campaign.
The proposed ban was scrapped after President Trump took office.
The Cost of Doing Nothing
More than a third of all cigarettes sold in the U.S. are menthols. Roughly 80% of Black smokers use them. Between 1980 and 2018, these products were linked to 157,000 smoking-related deaths among Black Americans, according to University of Michigan research. Studies show menthols are more likely to hook young smokers, and a ban could prevent an estimated 650,000 early deaths over four decades.
Many letters against the ban echoed the same claims: that smoking menthols is “a matter of adult choice”, or that a ban would “increase crime, reduce tax revenues, and hurt small businesses.”. These tens of thousands of letters came from public relations efforts run by Reynolds American, which makes Newport, and Altria, which makes Marlboro Menthol. Newport and Marlboro Menthol are the two biggest menthol brands in the U.S., according to Tobacco Insider.
The Rutgers study noted that most letters lacked identifying information, so it’s unclear if they reflected “genuine responses from citizens.” Phillip Gardiner, co-chair of the African American Tobacco Control Leadership Council, placed part of the blame on civil rights lobbying for the ban’s defeat.
Neither Altria nor Reynolds American answered questions seeking a response about the form letters.
The tale illustrates the interplay between corporate pressure and political calculation during the menthol rule debate. The strategy of inundating regulators with nearly identical form letters has been used before, though it seldom alters a rule. This time, however, it altered the result.
Where the paper stands
The paper backs the citizens who wrote in to share their views on the menthol cigarette ban and is against the tobacco industry campaigns that produced almost all of the letters opposing it. The flood of form letters, driven by Altria Group Inc. and Reynolds American, is a campaign to influence public policy through volume rather than argument, and it should not be mistaken for genuine public opinion.
The Rutgers study found that 97% of the 175,000 letters were form letters, with almost half carrying the same wording as campaigns run by those two companies. That is not citizen speech; it is corporate speech dressed up as popular will. The FDA should treat it as such.
The paper wants real citizens to have a real voice, not a manufactured one. When a rule is delayed because of a flood of form letters, the people who wrote them have not been heard; the companies behind them have merely been heard loud.
Source material: “How Big Tobacco flooded the FDA with public comments to kill a menthol cigarette ban,” STAT.
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