The AMA and other organizations have added people directly affected by menthol cigarette smoking as plaintiffs to a lawsuit they filed earlier this year that aims to ensure that the Food and Drug Administration (FDA) at last issues a final rule to ban the habit-forming cigarette.
It’s been 15 years since Congress, after doing its own research into the harm of menthol cigarettes, instructed the FDA to address the issue “quickly.” And three years have passed since the FDA in 2021 finally agreed to ban menthol cigarettes.
The amendment to the initial complaint comes after a U.S. Supreme Court ruling in an unrelated case, FDA v. Alliance for Hippocratic Medicine, established that spending money to gather information and advocate against government action doesn’t give a plaintiff such as an advocacy group or medical association standing to sue. The ruling in that case, which challenged the FDA’s approval of mifepristone, also noted that doctors do not have standing to challenge government safety regulations simply because the regulations might mean they have to spend more time or money in their medical practices.
To avoid potentially having their lawsuit dismissed because they don’t have standing to sue, the AMA, National Medical Association (NMA), and the African American Tobacco Control Leadership Council and Action on Smoking in Health added individual plaintiffs who have a “personal and concrete interest” in protecting their own health to their lawsuit, African American Tobacco Control Leadership Council et al. v. HHS et al. The case is before a federal court in California.
“Each individual plaintiff is an African American adult addicted to menthol cigarettes, or else formerly addicted to menthol cigarettes,” the amended lawsuit says. “Each individual plaintiff—and the African American community to which they belong—was targeted, and continues to be targeted today, by the tobacco companies that manufacture, sell, distribute, advertise, market, and promote menthol cigarettes. And each individual plaintiff furthermore suffers from the health effects of their addiction to menthol cigarettes, even years after breaking their addiction,”
The organizations also added individual plaintiffs who are members of their associations who have a strong personal interest in the matter because of family members and close friends who smoke menthol cigarettes.
Who joined in asking for ban?
Ten people joined as plaintiffs in the lawsuit. Their reasons for joining in asking that the FDA issue the final rule to ban menthol cigarettes are laid out in the amended complaint. Read on for some of their stories.
Lisa Mitchell, Madison, Wisconsin: Mitchell smokes menthol cigarettes daily, a habit she picked up when she was just 10 years old “in part because she thought it was cool.” Nearly everyone in her orbit smoked menthol cigarettes, including her mother, her mother’s eight sisters, her uncles, two brothers and two younger sisters. She remembers promotion efforts that Kool and Newport had in her neighborhood promoting menthol cigarettes: water bottles, fanny packs, billboards, promotions and direct mailings. In the years since her childhood, she’s watched family members get sick and die from smoking menthol cigarettes, including her mother, brother and sister.
Despite witnessing this, experiencing her own health problems and trying to break the habit, Mitchell is still addicted to menthol cigarettes. Mitchell believes she would “have a substantially increased likelihood of being able to quit. In her own words, she would have ‘hope’ for herself and other family members,” if the menthol cigarette ban finally took effect.
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Ben Smith, Buffalo, New York: Smith smoked menthol cigarettes for more than 40 years, beginning the habit in the early 1970s. The addiction contributed or caused him to develop stomach cancer, asthma, pneumonia, COVID and chronic obstructive pulmonary disease. He’s been hospitalized more than 25 times for smoking-related health issues. He did break his addiction, but still suffers the effects, most recently being diagnosed with prostate cancer. Now, his son is a smoker and he doesn’t want his son to suffer the same health problems.
“Smith believes that the Black community is among the most vulnerable to menthol cigarette smoking, and targeting by the tobacco companies,” the lawsuit says. And he believes “that a menthol cigarette ban would help to protect the next generation, the Black community, and encourage his family members and others within his community addicted to menthol cigarettes, to quit,” the amended lawsuit says.
Mark Mitchell, MD, member of the AMA and National Medical Association, Hartford, Connecticut: Professionally, Dr. Mitchell has studied and taken on smoking education and advocacy since the beginning of his career, completing a public health residency at Johns Hopkins School of Public Health. He’s worked to educate the Black community about tobacco industry tactics and worked to counter-message what the industry was marketing.
“On a more personal level, much of Dr. Mitchell’s work and interest in protecting the Black community is driven by his direct experience with family members and patients that were targeted by the tobacco industry and later became addicted to cigarettes, including menthol cigarettes,” the lawsuit says. “Their experience—struggling with addiction, the lack of control over one’s cravings, the physical harms left by smoking, and the loss and grief experienced by their families left behind—left an indelible mark on Dr. Mitchell’s practice and work today with the NMA and AMA.”
