The future of menthol cigarettes, smoked by 12 million Americans and 75 percent of African American smokers, could be the next flashpoint in a decades-long campaign against smoking in the United States.
Last week, Congress passed a bill giving the Food and Drug Administration the power to regulate tobacco products. President Barack Obama is expected to sign it into law soon.
The bill outlawed flavorings like chocolate, cherry and cloves that can attract young people to start smoking — but excluded menthol, by far the most popular flavoring accounting for around 27 percent of the cigarette market.
Under the bill, the FDA must study the medical effects and marketing of menthol and its impact on blacks, Hispanics and other groups and report within 18 months. In theory, the FDA could then move to ban menthol cigarettes but some anti-smoking activists are skeptical the agency will do so.
"I am pessimistic that menthol will be banned," said Dr. Joel Nitzkin of the American Association of Public Health Physicians, who described the bill as a fraud.
Some anti-smoking groups wanted the ban on flavored cigarettes to include menthol but were told repeatedly that would kill the bill, said William Robinson of the National African American Tobacco Prevention Network.
Tobacco industry lobbyists influenced some legislators, including members of the Congressional Black Caucus, to accept what amounted to a soft compromise for menthol, he said.
"They buy influence when you have the deep pockets the tobacco industry has," Robinson said. Other anti-smoking groups denied lobbyists influenced legislators to gain a more favorable outcome for companies that produce menthol brands.
FIRST STEP TO OUTLAW SMOKING?
Short of a complete ban at the end of its study, the FDA could order menthol cigarettes to be phased out, or it could preserve the status quo, said a Democratic aide on the House of Representatives Energy and Commerce Committee.
Lawmakers banned other flavored tobacco products because they could act "as a gateway product ... aimed at trying to get kids to start smoking," the aide said.
But the government needed more time to study the implications of a possible ban or restrictions on menthol, said Paul Billings of the American Lung Association.
"We don't know what the public response would have been to banning a product so many people are addicted to. Do they switch to another product? Get it another way?" he asked.
Any decision down the line by the FDA to restrict or ban menthol could hurt Lorillard, the top menthol cigarette manufacturer, whose products include Newport, the leading seller among U.S. blacks.
In an advertisement in the Wall Street Journal, Lorillard called the bill a first step to outlaw smoking completely.
The ad said the FDA was the wrong agency to regulate tobacco and the bill would not only boost a black market but make it harder for companies to develop safer products.
Still, Lorillard said it would provide "appropriate information" to the FDA report on menthol.
"We hope the FDA will solicit and consider input and comments from industry participants," said Lorillard spokesman Michael Robinson. "We look forward to a process that is grounded in the sound scientific information available today."
Around 20 percent of adult black Americans smoke, the same rate as the rest of the population, according to 2007 data from the Centers for Disease Control and Prevention (CDC).
Black smokers suffer more from smoking-related illnesses and death than their white counterparts, possibly because of inferior access to good medical care. There is little evidence that smoking menthol cigarettes is itself more dangerous than non-flavored brands, public health experts said.
But anti-smoking activists say menthol's mild anesthetic property masks the harshness of tobacco making it easier to start smoking and harder to quit.