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Possible FDA Ban on Menthol Cigarettes Haunts Brand Leader

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Lorillard, Inc., the third-largest tobacco maker in the U.S., is fighting to stop the Food and Drug Administration (FDA) from banning menthol in cigarettes, The Wall Street Journal reported Jan. 5.

Menthol cigarettes make up about 30 percent of industry sales. Lorillard — not the only tobacco company against a menthol ban — makes Newport, the leading brand. Newport menthols have driven an increase in the company's market share, from 9 percent in 2001 to 13 percent in the third quarter of 2010, even as overall domestic cigarette sales declined. 

Since Newport menthols make up the vast majority of Lorillard cigarette sales, the company may fear a “doomsday scenario if menthol gets banned and they can't keep a majority of their customers,” according to Philip Gorham, an analyst with Morningstar, Inc.

The FDA was given the authority by Congress to regulate tobacco in legislation passed in 2009. Although the law specifically outlawed flavorings such as candy, spice and fruit, which might be especially appealing to youth, it left it to the FDA to assess whether menthol flavoring should remain legal.

An FDA advisory committee, the Tobacco Products Scientific Advisory Committee, will make its recommendations on menthol in March. The agency may recommend responses less stringent than a ban, such as restrictions on advertising.

The FDA is not bound by the committee's recommendations and has no deadline to act. 

Some health advocates said that menthol, which is drawn from mint plants and creates a cooling sensation in the mouth and throat, is attractive to youth because it covers up the harsh taste of cigarettes. They also say that it is appealing to African-Americans, “who have long been a target of menthol marketing campaigns,” according to The Wall Street Journal.

Federal survey data from 2009 showed that 45 percent of smokers between 12 and 17 use menthols, and about 80% of African-American smokers prefer menthols to other brands.

A 2010 report from the Centers for Disease Control and Prevention found that African-Americans suffered disproportionately from smoking-related disease, compared to other racial and ethnic groups. Further, while only 20.6 percent of all Americans smoke, 21.3 percent of black adults do.

Lorillard and other opponents of an FDA ban on menthol argue that jobs are at risk, and that a black market for menthol cigarettes would remain if menthol cigarettes were outlawed. To head off a ban, the company has moved aggressively to dominate public discourse on the topic. According to The Wall Street Journal, it has bought Internet domain names potentially critical of menthols, such as MentholKillsMinorities.com, MentholAddictsYouth.com, FDAMustBanMenthol.com, KillerMenthol, BanMenthol and MentholKills.

The company set up pro-menthol Twitter and Facebook pages as well as UnderstandingMenthol.com, where, The Wall Street Journal reported, it “frequently links to articles that include quotes or are written by groups that oppose a menthol ban and present reasoning similar to its own.”

Lorillard also hired a PR firm to gain media exposure for prominent African-Americans opposing a ban. For example, one of the firm's consultants placed the spokesman for the Congress of Racial Equality, Niger Innis, on radio programs to discuss menthol. He objected to a possible ban because “you are taking away a legal preference and choice for African-Americans,” and because a black market could create “another vehicle of criminality in the African-American community.”

The same consultant submitted a pro-menthol editorial under the byline of Harry C. Alford, the CEO of the National Black Chamber of Commerce. Lorillard contributes $35,000 in yearly dues to the organization. Alford said the editorial “was not in any way influenced” by that relationship.

“African-Americans like their Newport cigarettes, and there is no reason why they should not be allowed to have them,” he said.

Health advocates in the black community dismissed such public relations efforts. For example, Dr. Louis Sullivan, U.S. health secretary under the first President Bush, was “very disappointed and very distressed” because African-American groups were being “used by tobacco companies.”

Lorillard would not comment on whether it had contributed financially to organizations that supported its point of view.

“Over time, the company has been a member of organizations such as trade groups, chambers of commerce and other organizations,” a spokesman for the company said. “Given what is at stake, it's only natural that we support them in their firmly held beliefs.”

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