How Big Tobacco Hijacked the Federal Comment Process to Kill the Menthol Cigarette Ban
In the spring of 2022, the U.S. Food and Drug Administration did something it had been inching toward for more than a decade: it formally proposed banning menthol as a characterizing flavor in cigarettes and eliminating all characterizing flavors in cigars. For public health advocates, it felt like a long-overdue reckoning with a product line that has caused disproportionate harm to millions of Americans, particularly in Black communities. For the tobacco industry, it was a five-alarm fire — one that required an immediate and aggressive counteroffensive. What followed was one of the most sophisticated manipulations of democratic regulatory machinery in recent memory, and a landmark new study out of Rutgers Health has finally put hard numbers to just how thoroughly the industry gamed the system.
A Record-Breaking Comment Flood — and What Was Really Behind It
When the FDA proposed banning menthol cigarettes and flavored cigars in 2022, nearly 250,000 public comments flooded in — a record response that led the Biden administration to delay a final decision. On its face, that volume of public input looks like democracy in action: a fired-up citizenry making its voice heard on an issue that touches everyday life. In reality, the Rutgers Health research team found something far more calculated underneath those numbers.
A Rutgers Health analysis shows that only a minority of the responses came from concerned individuals inspired to speak out in their own words. The study published in JAMA Network Open examined all 246,808 comments submitted to FDA dockets and found that 97% of comments on the menthol rule and 93% on the cigar rule were form letters. That leaves a vanishingly thin slice of authentic public discourse — just two percent of all comments were unique.
Roughly 46% of the menthol form letters contained content traceable to tobacco companies, including Reynolds American Inc.'s "Own It, Voice It" campaign and Altria Group Inc.'s "Voices for Consumer Choice" campaign. These weren't grassroots operations. They were sophisticated, corporate-funded machinery designed to manufacture the appearance of mass popular opposition, overwhelm federal reviewers with sheer volume, and give political decision-makers cover to stall or abandon a rule that science overwhelmingly supported.
The Machinery Behind the Mass Submission
How Companies Turned Their Own Customers Into Lobbyists
An earlier study in the project, led by Ollie Ganz, an assistant professor at the Rutgers School of Public Health, analyzed direct-to-consumer emails that tobacco companies sent customers during the comment period. The emails urged recipients to "take action" and steered them to company-run websites that assembled personalized antiban letters from menus of prewritten arguments, then submitted them to the FDA. In other words, a smoker who received one of these emails didn't need to write a single sentence on their own. They simply clicked through a company portal, selected from a curated list of talking points, and the system auto-generated and filed a comment on their behalf. The FDA then received it as a piece of public input — indistinguishable in its filing metadata from a letter a grandmother wrote at her kitchen table.
This tactic — sometimes called "astroturfing" when done at scale — has a long history in corporate lobbying, but deploying it through the formal federal rulemaking comment process represents an escalation. The Administrative Procedure Act requires agencies to consider public comments before finalizing rules, and agencies have historically treated the volume and substance of comments as a meaningful gauge of public sentiment. By weaponizing that process, the tobacco industry effectively turned the FDA's own transparency requirements against the agency — and against public health.
The "Own It, Voice It" and "Voices for Consumer Choice" Operations
Reynolds American's "Own It, Voice It" campaign and Altria's "Voices for Consumer Choice" operation were the two biggest engines of the flood. Both campaigns were designed to feel like organic consumer advocacy while being built, funded, and directed from corporate headquarters. The brand names of the campaigns — deliberately evoking personal empowerment and freedom of choice — were no accident. They were engineered to tap into the same libertarian and consumer-autonomy instincts that tobacco marketing has exploited for generations.
Reynolds American is the U.S. subsidiary of British American Tobacco, the maker of Newport — by far the best-selling menthol cigarette brand in the United States. Altria, formerly Philip Morris, controls the Marlboro Menthol line. Together, these two companies dominate the menthol segment, meaning they had the most to lose financially from a federal prohibition. The coordinated comment campaigns were, in effect, a multi-million-dollar investment in regulatory delay — far cheaper than losing access to a market worth billions of annual dollars in revenue.
The Science They Were Trying to Bury
The FDA's proposed product standards were designed to reduce disease and death associated with tobacco use, aiming to address the leading cause of preventable death in the United States by reducing youth experimentation and increasing the number of smokers who quit. The projections behind the rule were not speculative — they were the product of years of modeling and epidemiological research.
Modeling studies cited by the FDA projected that a menthol ban could result in a 15% reduction in overall smoking over 40 years. These studies estimated that between 324,000 and 654,000 smoking-attributable deaths could be avoided over that time frame. For context, the higher end of that range represents a number of preventable deaths roughly equivalent to the entire population of Baltimore. This is the scientific evidence that the torrent of industry-orchestrated comments was designed to drown out.
The rules were also framed as a step toward health equity, addressing disproportionate harm in specific demographic groups. Nearly 85% of African American smokers use menthol cigarettes, compared to about 30% of white smokers. Menthol increases the palatability of smoking, especially among youth and members of racial and ethnic populations, and menthol increases the difficulty of quitting. The product's chemistry is not incidental to those statistics. Menthol's cooling sensation reduces the harshness of smoke inhalation, making it easier for first-time smokers — especially adolescents — to begin and sustain the habit. It also appears to suppress the cough reflex that might otherwise prompt people to stop smoking.
A Long Road: The History of the FDA's Menthol Fight
The 2022 proposed rule didn't emerge from nowhere. It was the culmination of a regulatory saga that stretches back well over a decade — and that has been consistently frustrated by a combination of political caution and industry muscle. This was the third time the FDA had attempted to restrict menthol cigarettes, first in 2013 and again in 2018.
When Congress prohibited most cigarettes with flavorings as part of the 2009 Family Smoking Prevention and Tobacco Control Act, it exempted the most important flavoring of all: menthol. That carve-out, widely attributed to heavy industry lobbying during the bill's drafting, was controversial from the start — and it set up the prolonged regulatory battle that followed. The bill's legislative history noted several unique features of menthol and mentholated cigarettes, including "the large number of Americans who smoke menthol, the disproportionate prevalence of menthol cigarettes among African Americans, the racial and ethnic differences in lung cancer incidence, and the uncertainty about the potentially negative consequences of an immediate menthol ban."
Around five years later, in November 2018, the Trump administration announced its own plans to ban menthol cigarettes, which faced significant opposition and was ultimately abandoned. In April 2021, in response to a citizen petition to prohibit menthol cigarettes and a court order directing the FDA to respond, the FDA announced its commitment to issue a proposed product standard to prohibit menthol as a characterizing flavor in cigarettes "within the next year." The FDA met its deadline and issued its proposed rule in April 2022.
That proposed rule triggered the comment deluge — and the delay that followed. Although officials targeted to finish rulemaking on menthol cigarettes and flavored cigars by the end of 2023, the FDA extended the deadline to March 2024. By April 2024, the agency had not promulgated the rules for menthol cigarettes or characterizing flavors in cigars. The FDA's Fall 2023 agenda pushed the estimated finalization date to August 2024, but the agency missed that deadline as well.
Political Pressure, Civil Rights, and a Complicated Opposition
The Policing Argument
The tobacco industry's comment campaigns weren't the only force working against the menthol rule. There was a second, more emotionally resonant line of opposition — one that the industry arguably exploited and amplified for its own benefit. Another study in the project, led by Olivia Wackowski, a professor at the Rutgers School of Public Health, analyzed 122 news articles about the menthol rule and found that press coverage presented a more balanced picture: 75% of articles cited the ban's potential to reduce disease and save lives, while opposition arguments centered on concerns about increased policing in Black communities. The policing argument invoked the 2014 death of Eric Garner, which came at the hands of New York police who were trying to arrest him for selling untaxed cigarettes.
That argument carried genuine moral weight. Eric Garner's death became a flashpoint in the national reckoning over police brutality and the criminalization of minor infractions in Black communities, and connecting the proposed menthol ban to that tragedy gave the opposition a powerful emotional shorthand. In Massachusetts, which banned menthol cigarettes in 2020, at least one illicit seller faced prosecution amid a reportedly thriving black market. For critics of the ban, that was proof that prohibition creates illicit markets — and that the enforcement of those prohibitions falls hardest on the people who can least afford the consequences.
The debate even drew in prominent figures from the civil rights community. Gwendolyn Carr, the mother of Eric Garner, and Sybrina Fulton, the mother of Trayvon Martin, wrote a letter to New York City Council Speaker Corey Johnson urging careful consideration of any bill to ban menthol cigarettes. The women noted that the majority of Black smokers prefer menthol cigarettes, and argued that banning a product sold mostly in Black communities required honestly confronting what would happen to that community within the criminal justice system. These were not tobacco industry surrogates — they were grieving mothers whose concerns about over-policing were rooted in lived tragedy.
Researchers Push Back on the Policing Framing
Public health researchers, however, were clear about the distinction between sincere civil rights concerns and the way the industry deployed them. Villanti said this argument is designed to mislead the public because FDA product standards regulate what tobacco companies can manufacture and sell, not individual purchase or use of these products. The FDA's proposed rule was a product standard — a manufacturing prohibition, not a criminal ban on possession or use. Under the rule, it would have been illegal for companies to produce and sell menthol cigarettes; it would not have made it illegal for an individual to carry them or smoke them. Critics who raised the Garner comparison, Villanti argued, were conflating two fundamentally different types of regulatory action.
Whether that distinction fully addresses the concern is debatable — any product prohibition can generate downstream black markets, which do carry enforcement risks — but the industry's role in amplifying and funding the policing argument was, according to the Rutgers researchers, a strategic effort to muddy waters around a policy grounded in clear science.
How the Volume of Comments Became a Political Excuse
The strategy worked. The sheer mass of the comment flood gave the Biden administration something it needed: a procedural justification for delay. "This rule has garnered historic attention and the public comment period has yielded an immense amount of feedback, including from various elements of the civil rights and criminal justice movement," said Health and Human Services Secretary Xavier Becerra. "It's clear that there are still more conversations to have, and that will take significantly more time."
Becerra's statement treated the volume and diversity of comments as evidence of genuine public ambivalence — which was precisely what the tobacco industry had spent its campaign dollars manufacturing. "The sheer volume of comments was used as a reason to delay a public health policy that would have saved lives," said Andrea Villanti, professor at the Rutgers School of Public Health. The mechanism was almost elegant in its cynicism: flood the docket with industry-generated noise, and then watch the government cite that noise as a reason it cannot move forward.
Advocates had worried that delays would push the rule into a window that would allow opponents to overturn it using the Congressional Review Act during the next presidential term. Those concerns proved prescient. "The administration's inaction is enabling the tobacco industry to continue aggressively marketing these products and attracting and addicting new users," said Nancy Brown, CEO of the American Heart Association.
Political pressure from key constituencies likely explains the Biden administration's delay in issuing final rules ahead of the 2024 presidential election. The political calculus was cold: menthol cigarettes are popular among Black smokers, and some Black community leaders and organizations opposed the ban. Moving aggressively on a rule that could be framed as harming Black communities, in an election year when Democratic turnout in those communities was critical, carried real political risk.
The Trump Administration and the Final Withdrawal
On January 21, 2025, the Trump administration withdrew the FDA's proposed ban on menthol cigarettes, which the Biden administration had initially introduced in 2022. The FDA withdrew its proposed rules to prohibit menthol as a characterizing flavor in cigarettes and all characterizing flavors in cigars, and although either proposal could be revived under a future administration, the withdrawal ended both of the current rulemaking processes.
The move strongly indicated shifting FDA priorities under the second Trump administration. Amid these changes, industry may find the agency more receptive to its arguments — particularly those submitted in comments to proposed rulemaking. That last point is significant: the very comment manipulation strategy documented by the Rutgers team may be even more effective going forward, if the regulatory environment is already sympathetic to industry positions.
What the Research Reveals About Regulatory Vulnerability
The Broader Implication for Federal Rulemaking
The Rutgers team's findings, published in JAMA Network Open, go beyond the menthol debate. They expose a fundamental vulnerability in the federal notice-and-comment rulemaking process — one that well-resourced industries can exploit with relative ease. The Administrative Procedure Act was designed to give the public a meaningful voice in regulatory decisions. But when corporations can generate hundreds of thousands of nominally "public" comments at the push of a button, the signal-to-noise ratio collapses. Regulators tasked with reviewing every submission cannot readily distinguish between authentic constituent voices and astroturf generated on company portals, and politically exposed administrations may treat the resulting volume as proof of controversy rather than proof of manipulation.
"Taken together, these findings show how tobacco industry influence can shape policy debates in ways that obscure scientific evidence and distort perceptions of public opinion," said Kymberle Sterling, an associate professor at the Rutgers School of Public Health. That framing points to something larger than tobacco: the same playbook — coordinated, scalable, corporately funded comment campaigns — could be applied to environmental regulations, financial rules, pharmaceutical policies, or any other area where industry faces federal oversight through a public comment period.
The News Media's Role
Another study in the project, led by Olivia Wackowski, analyzed 122 news articles about the menthol rule and found that press coverage presented a more balanced picture: 75% of articles cited the ban's potential to reduce disease and save lives, while opposition arguments centered on concerns about increased policing in Black communities. That the media got closer to the truth than the official comment record did is a notable finding — it suggests that journalistic inquiry, when it focused on the substance of the science rather than the procedural optics of the comment count, offered a more accurate picture of where the evidence actually pointed.
Where Things Stand Now — and What Comes Next
With the menthol ban officially withdrawn at the federal level, the FDA's stalled effort is shifting attention to states, where health groups and the tobacco industry are jockeying for influence. The Biden administration's decision to postpone the final rules is pushing public health groups to work at the state and local level to fill in the gap.
"We can't rely on the president and on the feds to get this done, so we're going to have to take it into our own hands and do what we can to protect the people that live in our community and our state," said Cathy Callaway, senior director of state and local campaigns at the American Cancer Society Cancer Action Network. Massachusetts, which banned menthol cigarettes in 2020, remains a bellwether — an experiment in what state-level enforcement actually looks like, including the black-market dynamics that critics of the ban have long warned about.
The Rutgers studies — the JAMA Network Open paper on comment composition, the earlier analysis of direct-to-consumer emails, and the media coverage content analysis — collectively form the most thorough forensic accounting yet of how a major public health regulation was derailed. They document, in granular detail, the specific corporate campaigns involved, the mechanisms by which those campaigns generated paper-thin "public" opposition, and the way that manufactured opposition rippled into actual policy outcomes.
"There is no scientific evidence to support the White House's decision to not fully prohibit menthol flavoring in cigarettes and all flavors in cigars," said Karen Knudsen, CEO of the American Cancer Society and American Cancer Society Cancer Action Network. "This continued inaction is a shocking deference to the tobacco industry, which has repeatedly demonstrated its willingness to profit from products that result in death."
The menthol ban saga is, in the end, a case study in what happens when the formal machinery of democratic governance collides with the full financial and strategic resources of a cornered industry. The tobacco companies understood something critical: they didn't need to win the science. They just needed to win the clock. By flooding the comment docket, funding a sprawling network of front campaigns, and amplifying community concerns they didn't actually share, they bought years of delay — long enough for a change in administrations to render the question moot, at least for now. Whether the federal rulemaking process can be reformed to resist this kind of manipulation is a question that extends well beyond cigarettes. But for the hundreds of thousands of Americans whose lives modeling suggests could have been saved, it is no abstraction at all.
