With these numerous regulations, there is no need to treat the retail sale of menthol cigarettes any differently than non-menthol cigarettes.
Regarding potential restrictions on the advertising and promotion of menthol cigarettes, NATO commented to the FDA that the First Amendment to the U.S. Constitution protects free speech and the U.S. Supreme Court has extended these protections to commercial speech, which includes advertising. In fact, the Supreme Court has specifically held that the advertising and promotion of tobacco products are protected as free speech under the First Amendment (see Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 2001). With the advertising and promotion of cigarettes subject to constitutional protections, any proposed restrictions on the advertising and promotion of menthol cigarettes must comply with these constitutional standards.
Section 903(e)(3) of the Family Smoking Prevention and Tobacco Control Act states that the FDA is not limited in its authority to take regulatory action on menthol cigarettes, which means that the agency can ban the use of menthol in cigarettes. However, the question raised by the FDA in the rulemaking notice about banning menthol raises two very different but equally important questions for the FDA to ask itself.
First, why would a government agency that is tasked with protecting the public health consider banning a legal product that will create the right conditions for a black market in menthol cigarettes and, consequently, result in minors having easier access to cigarettes? Second, how is fostering a black market protecting the public from harm when more law enforcement resources will need to be spent fighting organized criminal activity in the illegal trafficking of menthol cigarettes?
If the sale of menthol cigarettes is banned in the United States, a black market will emerge for menthol cigarettes. Illicit trade already exists with the transportation and sale of untaxed or low-taxed cigarettes into high-tax states. Similarly, a ban on menthol cigarettes will create the conditions for criminal elements to establish a black market for menthol cigarettes. Government should not be in the business of setting the stage for illegal activity in the pursuit of its regulatory goals.
From Bad to Worse
To exacerbate the situation, the criminals dealing in illicit cigarettes will not be concerned with checking photo identification of individuals who desire to buy menthol cigarettes. Rather, the availability of contraband cigarettes to underage youth will undermine the key principle of the Family Smoking Prevention and Tobacco Control Act of reducing youth access to and use of tobacco products. Moreover, banning menthol cigarettes would only force adults who smoke menthol cigarettes to seek out illegal menthol cigarettes on the black market.
Moreover, restrictive regulations or a ban on the sale of menthol cigarettes will severely affect retailers. A ban on menthol cigarettes will result in a significant decline in legal cigarette sales due to customers seeking out black-market menthol cigarettes. This will put more jobs at risk and increase the prospect of retail business closures. The result is lost jobs, lost cigarette tax revenue to state governments and the federal government, and greater expenditures by law enforcement officials to combat what will likely be a widespread black market in menthol cigarettes.