The Family Smoking Prevention and Tobacco Control Act of 2009 gave the federal government, for the first time, broad new powers to regulate how cigarette makers market and sell their product.
The law, aimed at discouraging youths from picking up the habit, banned the production and marketing of fruit and candy flavored cigarettes, among other things.
But it left unregulated, oddly enough, one of the most popular, addictive and widely used flavored smokes on the market: menthols.
The Food and Drug Administration's Tobacco Products Scientific Advisory Committee, a panel created by the 2009 law, is weighing whether to severely restrict or place an outright ban the sale of menthols.
Such a move would close the loophole and essentially spike a product that accounts for almost a third of the nation's $70 billion cigarette market, according to The New York Times.
The FDA is required to report on menthol cigarettes in 2011 and take action by 2012.
But if history is any indication, the issue promises to be contentious.
Here's why:
The Power of the Tobacco Lobby
Members of the tobacco industry have given more than $63.7 million to members of Congress since 1990, according to the Washington, D.C.-based Center for Responsive Politics.
Though its influence may be waning in light of its controversial product, the tobacco industry still carries weight. And makers of menthol cigarettes are already girding for a fight against any further regulation of the tobacco industry.
"Concerns that the addition of menthol in cigarettes may enhance smoking-related health risks are not supported by research," Altria, the parent company of Phillip Morris, wrote to the Tobacco Products Scientific Advisory Committee.
A top official for Lorillard, which makes the Newport menthol cigarette, said in a statement to the media that "The science is clear and compelling that there is no differing health risk between menthol and non-menthol products."
Calls for Limited Government
In addition, conservative groups who favor limited government are opposed to further regulation of the industry.
"Our nation faces the challenges of widespread and needless interventions into everyday life. But where products are legal, where there is a lack of hard biological science indicating a negative impact on health, the federal government in our opinion should not dictate behavior to the American people," the American Conservative Union said in a letter to the FDA commissioner.
"Like many regulatory proceedings, the issue of whether to ban menthol cigarettes concerns questions of freedom and responsibility on one hand and, on the other hand, the use of government force to compel preferred behavior," said the group, whose members include Grover Norquist, the president of Americans for Tax Reform.
Freedom or no freedom, the tobacco industry's claims about its menthol products should not go unchecked.
Studies Shed Light on Menthol Smokers
Numerous scientific studies have shown that menthol brands are the preferred cigarettes of African-American smokers and youths who are taking up the habit. The flavoring and colling effect of menthols hides the harshness of unflavored cigarettes.
In 2008, scientists at the Harvard School of Public Health found what they called a deliberate strategy among cigarette makers to hook young smokers by adjusting the levels menthol.
"For decades, the tobacco industry has carefully manipulated menthol content not only to lure youth but also to lock in lifelong adult customers," Howard Koh, Professor and Associate Dean for Public Health Practice at the school, said in releasing the report.
Researchers at the University of Medicine and Dentistry of New Jersey, who analyzed quit rates among 1,700 smokers, reported in 2009 that African Americans and Latinos preferred overwhelmingly preferred menthols and had a harder time kicking the habit than smokers of regular cigarettes.
"We previously found that menthol cigarette smokers take in more nicotine and carbon monoxide per cigarette," said study author Kunal Gandhi, a researcher in the division of addiction psychiatry at the UMDNJ-Robert Wood Johnson Medical School.
"This study shows that menthol smokers also find it harder to quit, despite smoking fewer cigarettes per day," Gandhi said.
Jonathan Foulds, director of the Tobacco Dependence Program at the same school, said evidence suggests that menthol "is not a neutral flavoring in cigarettes. It masks the harshness of the nicotine and toxins, affects the way the cigarette is smoked and makes it more deadly and addictive."
"More than 80 percent of the African American smokers attending our clinic smoke menthols, and they have half the quit rate of African Americans who smoke non-menthol cigarettes," he said.
Following passage of the 2009 tobacco-regulation bill, the National African American Tobacco Prevention Network criticized the menthol loophole and called the law "incomplete."