The FDA's Tobacco Products Scientific Advisory Committee (TPSAC) report and "recommendations" on menthol cigarettes is already being used to block a menthol ban, demonstrating that the TPSAC didn't know what it was talking about when it argued that its report clearly recommended that menthol cigarettes be banned.
Last week, Senator Richard Blumenthal wrote to the FDA seeking a ban on menthol cigarettes. In response, however, the Center for Regulatory Effectiveness (CRE) - citing TPSAC's own report - noted that the FDA cannot ban menthol cigarettes until a study is carried out on the issue of contraband cigarettes that could arise if menthol cigarettes are banned.
According to CRE's press release: "Senator Blumenthal states that his recommendation to ban menthol cigarettes is based on the report of the FDA Tobacco Product Scientific Advisory Committee. Unfortunately he must have not read the report in its entirety. The TPSAC made it clear that no action can be taken on a ban until the issue of contraband has been addressed."
The Rest of the Story
The Center for Regulatory Effectiveness is absolutely correct. The TPSAC's report, rather than recommend a ban on menthol, actually cautioned against such a ban, requesting that the FDA conduct a study of the contraband issue before embracing any particular policy regarding menthol.
Nevertheless, the chair of the TPSAC panel told the media that the Committee did in fact make a clear recommendation. This flies in the face of the clear language of the TPSAC's report.
The rest of the story is that rather than offer a recommendation, TPSAC punted the issue back to the FDA and shirked its responsibility. The Committee was statutorily charged with making a recommendation to the FDA about whether to ban menthol cigarettes, taking into account the issue of potential contraband. The Committee failed to carry out this charge.
At the end of the day, all the TPSAC menthol report actually does is put an even larger hurdle in the path of a potential menthol cigarette ban. It delays any such policy by years, requiring the FDA [unless the Agency ignores the report] to conduct a contraband study before even proposing a policy. Most importantly, it gives the Agency an out whereby it can respond to politicians like Blumenthal by simply noting that its hands are tied: it cannot act because we don't know about the potential effects of a contraband menthol cigarette market.
Lastly, the TSPAC report not only delays a potential menthol ban by years, but in doing so, takes the wind out of the sails of advocates who have been pushing for such a ban. The issue is going to be lost among the many other things that the FDA considers in the upcoming years, and the chance that the public health community had to advocate for such a policy has been squandered.
By the way, this is exactly the way the process is supposed to work. By exempting menthol from the Tobacco Act's flavoring ban and instead, appointing a committee to "study" the problem, Congress (and sadly, the Campaign for Tobacco-Free Kids) got exactly what they intended: the exemption of menthol cigarettes so that there would be no substantial reduction in cigarette profits, thus retaining Philip Morris' support for the legislation and keeping the negotiated deal in tact.
This was made easier because it was the health of the African American community that was offered to Philip Morris as a bargaining chip. It's a lot easier to trade away the rights and interests of marginalized communities - especially communities of color - with less political power. If the interests of white males were at stakes, things would have looked very different.
Sadly, as Bob Robinson was the first to point out and constantly reminds us, it is not the tobacco companies but the Campaign for Tobacco-Free Kids which was the first to jump forward with the argument that menthol cigarettes need to remain on the market because of the potential of a contraband market if they are banned. With friends like the Campaign for Tobacco-Free Kids, Lorillard did not even need to do its own advocacy work to protect its menthol cigarette sales. The Campaign did the dirty work for them.