The Food and Drug Administration’s top tobacco official said Monday that the Biden administration is still pursuing its proposal to ban menthol flavored cigarettes, months after advocacy groups accused the White House of quashing the rule because of the looming election.

“I just want to start and reinforce that FDA has not abandoned the menthol product standard,” Brian King, director of the FDA’s Center for Tobacco Products, told a House Energy and Commerce Committee hearing this week.

King was responding to a question from Rep. Robin Kelly, who had voiced frustration with the Biden administration after the Department of Health and Human Services announced it had delayed the ban citing “immense” feedback.

The Illinois Democrat had led an effort by Congressional Black Caucus members calling for the ban, citing efforts by the tobacco industry to target Black consumers using menthol flavored cigarettes.

“It’s a priority for us. We followed through rulemaking processes and it’s presently with the White House and it continues to be a priority for us,” King said.

The FDA’s proposal has been stalled for years under review at the White House’s Office of Management and Budget. 

The OMB’s records had last scheduled the rule to be finalized by March 2024, but later moved the proposed ban to a list of measures that the federal government “does not expect to have a regulatory action” within the next year.  An HHS spokesperson did not comment on whether the timing of the rule has changed.

After the Biden administration announced its plans to indefinitely delay the measure, proponents accused officials of bowing to political pressure.

“In an election year, politicians should be prioritizing people, not profiteers. Today’s news from the Biden Administration is a blow to the Black community, who continue to be unfairly targeted and unjustly killed by Big Tobacco,” NAACP President Derrick Johnson said in an April statement.

The measure had faced opposition from some civil rights and police groups, accusing the agency of “over-criminalizing tobacco” amid record low smoking rates.

“Banning the legal sale of menthol cigarettes through licensed businesses will lead to illegal, unlicensed distribution in communities of color, trigger criminal laws in all 50 states, increase the incidence of negative interactions with police, and ultimately increase incarceration rates,” wrote the Law Enforcement Action Partnership in April.

Democrats have also faced attacks on the campaign trail over the issue. The conservative Building America’s Future PAC has been running ads warning “Harris and DC Democrats are coming after your menthol cigarettes.”

It is unclear whether Vice President Kamala Harris, the Democratic candidate for president, would support the ban if elected. A campaign spokesperson did not immediately respond to a request for comment.

Frustration over e-cigarettes

Tuesday’s hearing also comes amid months of frustration from Capitol Hill over the FDA’s approach to the e-cigarette market.

Lawmakers criticized the agency for not doing enough to crack down on imports of illegal e-cigarettes that have flooded the market, often with menthol and other “kid-friendly flavors” not authorized by the agency. Others questioned the long backlog of applications from companies seeking to market e-cigarettes legally and agency moves that have penalized small businesses for illegal sales.

King called for more resources to respond to the “sheer size of this marketplace, which is unprecedented.”

“We’re making a dent, we’ve done a lot of first-of-their-kind actions, but we need more resources and we need other agencies to step to the table as well,” said King.

He cited the steep cost of trying to go to court to seize all of the thousands of e-cigarettes being distributed around the country, warning it “would be untenable.”

A recent effort to seize millions of dollars of unauthorized e-cigarettes at Los Angeles International Airport touted by the agency last year was slowed by a slew of products that were falsely declared by importers as being other products, King said, requiring officials to manually open boxes to look for the products.

“We are unresourced given the magnitude of the situation and we also have to make sure that all the key players in this space are committed to making it a priority as well,” said King.