How Big Tobacco flooded the FDA with public comments to kill a menthol cigarette ban

This story, published in partnership with The Examination, examines how the tobacco industry used a flood of public comments in its battle with the Biden-era FDA over a proposed menthol cigarette ban. After the FDA drafted language in 2022 to outlaw the manufacture of mint-flavored cigarettes, it asked for public comments and received about 175,000 messages over three months.

A Rutgers University study published last month in JAMA Network Open found that 97% of those comments were form letters opposing the ban. Nearly half used the same language as campaigns run by tobacco giants Altria Group Inc. or Reynolds American, and most of the rest echoed industry talking points. Only 2% of the letters were unique.

The tactic is not new. The tobacco industry has used it since at least the 1980s, when it bombarded a federal agency with letters opposing airline smoking restrictions. It is also not limited to cigarettes: when the FCC 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 their 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 is novel about the menthol campaign, however, is that the tactic seems to have worked. After the comment period closed in August 2022, the FDA said it would “need ample time to comprehensively review and analyze all of the comments.” The agency did not respond to requests for comment for the 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, since he needed support from Black Americans, a key market for menthol cigarettes. In late 2023, a conservative organization bought television ads criticizing the proposal, while 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 such outcomes in Canada or the European Union after governments there banned menthols. The March 2024 deadline passed without action.