Menthol cigarettes have been around since the 1920s. Will New Jersey become the first State to ban them?

Pending before the New Jersey Legislature are Assembly Bill No. 2185 (primary sponsor Del. Herb Conaway, Jr. [D-Dist. 7]) and Senate Bill No. 1947 (primary sponsors Sen. Joseph F. Vitale [D-Dist. 19] and Sen. Robert W. Singer [R-Dist. 30]). The bills are identical. If enacted, they would “include[] menthol and clove cigarettes in the current prohibition against the sale and distribution of flavored cigarettes.”

Existing Bans

Since 2008, New Jersey law has prohibited certain characterizing flavors in cigarettes. The ban targets a variety of characterizing flavors (“other than tobacco, clove or menthol”) and “applies to the cigarette, any smoke emanating from the cigarette, and any component part of the cigarette, including the tobacco, paper, roll or filter, or any other matter or substance that can be smoked. A series of monetary penalties and adverse licensure actions may be imposed for violations of the ban.”

Additionally, “in 2009, a federal ban on the sale of flavored cigarettes was enacted and codified at [21 U.S.C. § 387g]. The federal law includes clove flavorings in the ban, but provides an exception for tobacco and menthol flavors.”

Proposed Ban on Menthol

Assembly Bill No. 2185 and Senate Bill No. 1947 would add “menthol, mint, wintergreen, [and] clove” to the existing ban on flavorings. The bills are intended to “update[] the current State law to reflect the federal ban on clove-flavored cigarettes, and additionally prohibit[] sales of menthol-flavored cigarettes, which are associated with increased health risks, increased addiction potential, increased difficulty quitting, and increased rates of young people starting smoking and progressing to regular tobacco use.”

Federal Inaction on Menthol

The bills include ten legislative findings in support of the legislation. Among other things, the findings reference anti-menthol activity at the federal level. They note the following:

  • “A 2011 final report issued by the Tobacco Products Scientific Advisory Committee of the federal Food and Drug Administration (FDA) concluded that ‘removal of menthol cigarettes from the marketplace would benefit public health in the United States.’”
  • “An independent scientific review by the FDA concluded ‘that menthol cigarettes pose a public health risk above that seen with non-menthol cigarettes.’”
  • “In 2013, the FDA issued an Advanced Notice of Proposed Rule Making to take public input on the regulatory options regarding menthol cigarettes. However, the FDA has taken no subsequent action since that time to remove menthol cigarettes from the marketplace.”
  • “On August 22, 2017, a group of eight U.S. Senators submitted a letter to the FDA requesting further action to address the risk of menthol cigarettes.”

(Hyperlinks added.)

Status of the Legislation

Senate Bill No. 1947 was introduced on February 22, 2018, and referred to the Senate Health, Human Service and Senior Citizens Committee. It remains pending before the Committee.

Assembly Bill No. 2185 has been with the Assembly Appropriations Committee since January 29, 2018. It was introduced the same day and reported favorably (seven in favor, three against, and three not voting) out of the Assembly Health and Senior Services Committee.

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These bills are of interest, for a number of reasons.

From a national perspective, New Jersey would be the first menthol ban by any of the fifty States if enacted. This could inspire other States to act, just as much as it could lead to illicit trafficking to meet the remaining demand for menthol (albeit, newly contraband) in the State.

The bills are also of interest beyond the issue of menthol. There has been some possibility of FDA action to prohibit or limit menthol content, but the issue has been dormant for some time. Legislators in New Jersey have noticed this, and they are taking it upon themselves to see this policy goal fulfilled. Where federal inaction might otherwise provide some relief to the industry, it will be interesting to see if States take the reins in terms of regulation and enforcement.

We will continue to monitor for further developments.