RE: Docket No. FDA-2013-N-0521, Menthol in Cigarettes, Tobacco Products; Request for Comments
Leslie Kux, Assistant Commissioner for Policy
c/o Division of Dockets Management (HFA-305)
U.S. Food and Drug Administration
5630 Fishers Lane, Rm. 1061
Rockville, MD 20852.
Dear Assistant Commissioner Kux:
On behalf of the American Conservative Union (ACU), the oldest and largest grassroots conservative organization in the nation, I am writing to express our strong opposition to the establishment of the Food and Drug Administration of a tobacco product standard for menthol in cigarettes.
As with most expansions of government authority, we believe that such a product standard, and especially an outright ban, would not only fail to achieve its ostensible goals – the promotion of smoking cessation and prevention of smoking by youth – but would in fact be counterproductive. In addition, a menthol product standard or ban would have a significant negative effect on retailers and the economy, cost thousands of jobs, reduce state revenues, and greatly burden law enforcement, factors the FDA must consider in any rulemaking.
The unintended consequences of a menthol rule stem from the likelihood that banning or restricting menthol use would result in the dramatic expansion of the black market in cigarettes. Menthol cigarettes currently comprise one-third of the market, providing a major opportunity for contraband activity and counterfeiters. Numerous authorities, including the Organization for Economic Cooperation and Development, the Bureau of Alcohol, Firearms and Tobacco, the Government Accountability Office and the Virginia Crime Commission have confirmed the extensive current activities of counterfeiters. Adding a monopoly on menthol cigarettes to their product offerings would dramatically expand their business.
This black market represents a major public health challenge. Counterfeit cigarettes have been found to contain far greater concentrations of harmful compounds, creating health risks that would more than offset any benefits of removing menthol. Moreover, black-market operators, by avoiding taxation, sell their products below market price and do not respect laws restricting the sale of cigarettes to minors, therefore undercutting efforts to promote smoking cessation and prevent young people from starting the habit. (Under the “We Card” initiative, retailers have reportedly reduced the success of underage smokers to purchase cigarettes from 76 percent to under six percent.)
For the same reason, an expansion of the black market would also cost the Federal government and states desperately needed revenues on top of an estimated loss of $5 billion annually due to contraband activity. http://www.forbes.com/sites/kellyphillipserb/2013/08/20/up-in-flames-cigarette-taxes-create-opportunity-for-revenue-and-crime/
Retailers could be hit extremely hard. According to various industry sources, cigarettes account for between 30 and 40 percent of sales by convenience stores, which provide more than five million desperately needed jobs. Eliminating all sales of menthol cigarettes could cost $7.6 billion and lead to price increases for non-tobacco products.
And of course, by definition any new counterfeit activity would create new headaches for law enforcement and even national security concerns. The BATF has noted that "(t)raditional organized crime,” terrorist groups and street gangs are all involved in contraband cigarette trafficking, and that it has become the subject of gang wars. Counterfeit cigarettes have been used to fund criminal elements, and it has been estimated that 50 percent of contraband cigarettes originate in China.
Like many regulatory proceedings, the issue of whether to ban menthol cigarettes concerns questions of freedom and responsibility on the one hand and, on the other hand, the use of government force to compel preferred behavior. On that spectrum, the conclusion is obvious: The government does not have the right to compel preferred behavior.
The integrity of science-based regulatory decisions demands that the FDA process not be façade for a foregone conclusion regarding menthol in cigarettes. America does not need another unnecessary regulatory initiative that diminishes consumer freedom and personal choice.
Given the potential public health, economic, law enforcement and even security risks for unregulated cigarette marketing that could be produced by a menthol product standard or restriction on sales, it is clear that such an action would not be in the best interests of the public and would undermine important government objectives. Accordingly, the American Conservative Union urges the FDA not to move forward with regulatory action in this regard.
Director of Government Relations
American Conservative Union