DISTRICT JUDGE DISMISSES MENTHOL LAWSUIT

APPEAL IS LIKELY

by Charyn D. Sutton
Special to the Philadelphia Leader

September 25, 1999 -- Is it a violation of the civil rights laws to target market "dangerously defective mentholated tobacco products" to African Americans? In ruling last week in Philadelphia, U.S. Federal District Court Judge John R. Padova said no. But the plaintiffs in the landmark civil rights case plan to appeal that ruling to a higher court.

The menthol lawsuit was first filed in October 1998 by Philadelphia attorneys William Adams, Carol Black and Stephen Sheller on behalf of individual plaintiffs and the National Association of African Americans for Positive Imagery (NAAAPI) . Adams and Black are African American attorneys who reside in West Philadelphia. Sheller, also a Philadelphia lawyer, is a nationally-known tobacco litigator.

Although blacks account for about 10 percent of all U.S. smokers, studies show that Blacks make up 60 percent to 70 percent of the menthol cigarette consumers, and are 30 percent more likely to die of smoking-related illnesses than whites.

"Even if you account for poverty and other things, that still doesn't account for the higher death and illness rates among African Americans," said the Rev. Jesse W. Brown Jr. "We think it's the menthol."

Rev. Brown is an African American Lutheran pastor who lives in North Philadelphia and pastors churches in Northwest and North Philadelphia. He is also lead plaintiff in the civil rights lawsuit. Prior to becoming involved in the lawsuit, Rev. Brown led a number of community-based movements against menthol cigarettes that were being targeted for Black youth, beginning with the Campaign Against Uptown Cigarettes in Philadelphia in 1990.

"Every time we turn around, there's a new marketing strategy for a menthol cigarette brand that targets the Black community specifically," Rev. Brown said in a recent interview. "As a pastor, I have had to preach many funerals of men and women whose illnesses were caused by their addiction to mentholated cigarettes. This issue affects me deeply."

According to newspaper reports, Judge Padova based his ruling that dismissed the lawsuit on statements that the same menthol tobacco products are marketed and sold to Blacks and Whites. So, he reasoned, if all races have an equal opportunity to buy the deadly products, there could be no
racial discrimination.

In a news release supporting the judge's ruling, R.J. Reynolds Tobacco Company assistant general counsel Thomas F. McKim said, "R.J. Reynolds markets its cigarette brands to all adults who choose to smoke, regardless of their ethnic background. Our goal is to offer adult smokers a wide variety of brand choices and styles." Certainly, smokers in the White community are informed about the full range of cigarette brands. Yet for Blacks, the situation is quite different. For example, the Reynolds Tobacco's product line includes four of the nation's ten best-selling cigarette brands: Winston, Camel, Salem and Doral. Yet until it brought out Camel Menthols in 1997, Reynolds had not advertised Camels in Ebony for three decades -- even though Black neighborhoods had lots of older men who had always smoked Camels.

Similarly, there were no advertisements for Winston in publications read primarily by Blacks or on the small "junior" billboards in inner city communities, even though Winston was a top-selling brand. Reynolds's major competitor -- Philip Morris -- did not advertise Marlboros in Black publications or Black communities either, despite Marlboro's status as the #1 brand in the United States.

In fact, the only tobacco products that tobacco companies actively market to African Americans are menthol cigarettes. Philip Morris pushes the menthol versions of Benson & Hedges and Virginia Slims. R.J. Reynolds promotes Salem. And the menthol sweepstakes winners for decades have been two brands manufactured by smaller tobacco companies: Lorillard's Newport and Brown & Williamson's Kool.

The result of this targeting is that with each succeeding generation, more and more Black smokers opted for menthols. In the mid-1950s, Black and White percentages of menthol smokers were approximately the same. By 1999, survey showed that more than 90% of beginning Black smokers -- mostly teenagers -- chose menthol.

There has not been much government-funded research on menthol in cigarettes because until recently menthol was simply considered a flavoring. The private research on menthol has not been scrutinized because the Food & Drug Administration (FDA), which regulates the use of menthol in cosmetics, drugs and foods, is not allowed by law to regulate menthol in tobacco products.

But some information is known. Smokers of menthol cigarettes tend to inhale more deeply, because menthol has an anesthetic and cooling effect. Also, since menthol is also an ingredient
in medicines, some smokers actually believed that mentholated cigarettes were healthier than regular cigarettes. Yet research by the American Health Foundation showed that menthol smokers received as much as three times the exposure to toxic and cancer-inducing agents as smokers of regular
cigarettes with similar nicotine content.

In addition to placing smokers at greater risk of cancer, there is some evidence that menthol may be habit-forming. That could mean that menthol cigarettes are more addictive than regular brands, which would explain why Black smokers (who are far more likely than Whites to be menthol smokers) have more trouble quitting smoking than White smokers.

Obviously anticipating a favorable ruling, the tobacco companies have begun to increase their marketing efforts for menthol brands in Black communities. Because African Americans tend to buy individuals packs rather than cartons, patronize corner stores rather than cigarette discount stores, and make less use of coupons and discounts, Black smokers tend to return a higher profit margin per pack sold than White consumers. In fact, according to a recent article in the Wall Street Journal, Lorillard's Newport brand has "some of the highest profit margins in the [tobacco] industry." Newport is the #1 brand of Black smokers.

This is probably why the manufacturers of Newport have introduced a new menthol brand called Maverick, Philip Morris is gearing up to test-market a new menthol Marlboro in Atlanta and Pittsburgh, Camel now is sold in a menthol formulation, and both Salem and Kool have new media campaigns that strongly push their "menthol" taste.

"It is clearly a civil rights violation for the tobacco companies to sit in their board rooms and make marketing decisions that increase death rates in Black communities," Rev. Brown said. "We are still hopeful that higher courts will rule that Black lives are more important than tobacco industry profits.