III. Being a Black Smoker
The marketing, advertising and promotional blitz has had its effect.(79)
A greater percentage of African-American adults are smokers. This is particularly
true for men. In 1987, 30.7% of white men twenty years and older were smokers,
while 40.3% of African-American men were smokers.(80)
The smoking rate between black women and white women was essentially the
same, with 27.3% of white American women twenty years and older being smokers
and 27.9% of African-American women. However, African-American smokers
smoke approximately 35% fewer cigarettes per day than do white smokers.(81)
Nevertheless, African-Americans have higher rates of most smoking-related
diseases.(82) This may be a result of the
fact that African-Americans smoke disproportionately more mentholated
cigarettes.(83) Eighty percent of African-American
smokers smoke mentholated cigarettes while only 25% of white smokers smoke
mentholated cigarettes.(84) This use of
menthol is associated with increased health risks and has resulted in significantly
poorer health status for African-Americans.(85)
A. The African-American Smoker
African-Americans start smoking later than white Americans.(86)
Since 1970 the prevalence of smoking among African-American adolescents
(especially teenage girls) has declined.(87)
However, even though African-Americans are strongly motivated to quit smoking,
fewer African-Americans than white Americans are able to do so.(88)
Furthermore, African-Americans are less likely to abstain for over a year.(89)
Consequently, African-Americans are more likely to be long-term smokers.
In addition, African-American smokers are not heavy smokers.(90)
In fact, the average adult, African-American smoker smokes significantly
fewer cigarettes than the average white adult smoker.(91)
However, despite the fact that African-Americans start later in life and
smoke fewer cigarettes, they show high levels of nicotine dependence.(92)It
is puzzling that African-Americans have more illness even though they start
smoking later in life and smoke fewer cigarettes. Part of the reason for
this lies in the African-American preference for mentholated brands which
are high in tar and nicotine.(93) Although
menthol is a naturally occurring alcohol, most of the menthol currently
used is synthetic.(94) Menthol is used
in a number of commercial products such as toothpaste, mouthwash, and foods.
It is considered not directly carcinogenic and is rated "generally regarded
as safe" by the Food and Drug Administration.(95)
About 75% to 90% of African-Americans report a preference for menthol compared
to only 23% to 25% of white Americans.(96)
This menthol brand preference is not related to educational level, occupational
class, or age.(97) Not only do menthol
cigarettes tend to be higher than nonmenthol cigarettes in tar and
nicotine, but they may also have their own independent effect on addiction
and dependency, which has not been adequately studied.(98)
Only two studies to date have directly addressed the relationship between
smoking mentholated cigarettes and the increased cancer risk in African-Americans.(99)
The studies made opposite conclusions, leaving unanswered the question
of whether menthol explains the black-white lung cancer difference. Furthermore,
no study has been made into the addictive and dependency power of menthol
combined with nicotine. Simple logic says that African-Americans who smoke
mostly mentholated cigarette may be trying to kick two habits--nicotine
and menthol. While simple logic may be wrong, no settlement should be made
until the answer to the question is proven through biomedical research.
This lethal preference for menthol brands by African-American smokers
is shaped by targeted advertising campaigns by the tobacco industry, which
advertises these brands in culturally specific magazines and on billboards
in predominantly African-American neighborhoods.(100)
In fact, the success of menthol brands are almost entirely tied to the
African-American market.(101) Menthol
cigarettes were introduced in the 1930s, but did not exceed 3% of the total
market until 1949. In the 1960s, advertising for menthol cigarettes began
appearing in Ebony, an African-American-oriented magazine. By 1963 the
market share was 16%, and by 1976 it was 28%.(102)
Sales to African-Americans accounted for the vast majority of this increase.
It is clear that the tobacco company targeted the African-American community,
but they pushed on them a drugged, enhanced version (menthol) which is
more addicting and more deadly.
B. African-American Health Status
The fact that African-Americans are sicker and are dying at a higher
rate than European-Americans is not news.(103)
African-Americans have more illnesses, have lower survival rates, and die
at greater rates than white Americans. The excess death rates for African-Americans
have exceeded those for white Americans for every major chronic condition
except chronic obstructive pulmonary disease.(104)
That is, for every 100,000 persons, 511 white persons die from major chronic
illnesses while 779 black persons die.(105)
Thus, there were 268 black persons who would not have died from major chronic
illness if they had been white.(106) In
fact, before the age of sixty-five, African-American smokers lose twice
as many years of potential life as white smokers.(107)
Quite literally, being a black smoker is more dangerous to your health
than being a white smoker.(108)
One of three cancer deaths in America is related to tobacco use, and
African- American communities are disproportionately its victims.(110)
Tobacco- related cancers account for approximately 45% of the incidence
of cancer in African-American men and 25% of the incidence in African-American
women.(111) The incidence of oral cavity
and pharynx cancer in black men exceeds white men by 49.1%.(112)
The incidence of lung and bronchus cancer in black men exceeds white men
by 40.7%.(113) And to a somewhat lesser
degree, the same pattern is true for women.(114)
Furthermore, African-American smokers (women in particular) have significantly
higher lung cancer rates for any given level of smoking.(115)
After having developed cancer, European-Americans are more likely to
survive it than African-Americans. For instance, the five-year survival
rate for European American men for oral cavity and pharynx cancer exceeds
that of African-American men by 12.9%.(116)
Similarly, the five-year survival rate for white American men for lung
and bronchus cancer exceeds that for black men by 1.3%. And to a lesser
degree, a similar pattern is true for women.(117)In
addition to mortality, African-Americans suffer greater morbidity than
do white Americans. For instance, even though African-American women smoke
fewer cigarettes than white American women, African-Americans have lost
greater permanent lung capacity.(118)
Furthermore, tobacco smoking does not affect only the health of the smoker,
but also that of the infant if a woman smokes during pregnancy.(119)
In 1987, for every 100,000 infant deaths, 8.6 white infants died compared
to 17.9 black infants.(120)
At this point it is unclear what the tobacco industry knew about the
addicting power of mentholated nicotine. Given the significant difference
in dependence and the health status of smokers of mentholated cigarettes,
it would be another injury to the African-American community not to have
its specific harm addressed in any tobacco settlement. African-Americans
find smoking socially unacceptable, tend to start smoking later in life,
smoke fewer cigarettes per day, are strongly motivated to quit and have
a high nicotine dependence, making abstinence difficult even for lighter
smokers.(121) It is the higher nicotine
dependence that makes it harder for black smokers to quit.(122)
It is the preference for mentholated brands that may explain why African-Americans
smoke fewer cigarettes but have higher cancer rates.(123)
The tobacco industry has used targeted advertizing to effectively drive
up their sales and profits. In doing so, it drove up the death rate of
African- Americans. Consequently, Congress should not pass any legislation
that does not specifically address the needs of African-Americans.
Proposed National Settlement
Targetting of African Americans
Being a Black Smoker
Restructuring theTobacco Settlement
|79. FN78. See Johnson, supra note
44, at 26-28 (discussing cigarette firms continuing to sell to "special
markets" that are primarily African-American and Hispanic and to place
ads in ethnic newspapers and magazines, in spite of the fact that tobacco-related
disease is one of the leading causes of death in blacks).
80. FN79. U.S. Dep't of Health &
Human Servs., Health Status of Minorities and Low- Income Groups 147 tbl.
81. FN80. R. Cooper & B.E. Simmons,
Cigarette Smoking and Ill Health Among Black Americans, 85 N.Y. St. J.
Med. 344-49 (1985); S.D. Stellman & L. Garfinkel, Smoking Habits and
Tar Levels in a New American Cancer Society Prospective Study of 1.2 Million
Men and Women, 76 J. Nat'l Cancer Inst. 1057, 1063 (1986).
82. FN81. Office on Smoking &
Health, U.S. Dep't of Health & Human Servs., The Impact of Cigarette
Smoking on Minority Populations (1987) [hereinafter The Impact of Cigarette
83. FN82. See Black Clergy, Anti-Tobacco
Group Campaign Against Camel Brand, Greensboro News & Rec. (N.C.),
Mar. 14, 1997, at B6, available in 1997 WL 4575885.
84. FN83. Id. In fact, up to 91% of
young African-American women smokers and 87% of young African-American
male smokers report smoking menthol cigarettes compared to 34% and 24%
of white smokers, respectively. See The Impact of Cigarette Smoking, supra
note 81; Office of Smoking & Health, U.S. Dep't Health & Human
Servs,, Tobacco Use in 1986: Methods and Basic Tabulations from Adult Use
of Tobacco Survey (1986); Pamela I. Clark et al., Effect of Menthol Cigarettes
on Biochemical Markers of Smoke Exposure Among Black and White Smokers,
110 Chest 1194, 1194 (1996), available in 1996 WL 9033322; Lynne E. Wagenknecht
et al., Racial Differences in Serum Cotinine Levels Among Smokers in the
Coronary Artery Risk Development in (Young) Adults Study, 80 Am. J. Pub.
Health 1053, 1056 (1990).
85. FN84. See Clark, supra note 83,
at 1194 (asserting that menthol increases cotinine, the major metabolite
of nicotine, resulting in "greater availability of nicotine and carbon
monoxide, the higher levels of these biochemical markers may be indicators
of higher levels of absorption of other components of the gas and particulate
phases of tobacco smoke").
86. FN85. T.D. Sterling & D. Weinkam,
Comparison of Smoking-Related Risk Factors Among Black and White Males,
15 Am. J. Indus. Med. 319, 333 (1989).
87. FN86. Pub. Health Servs., Dep't
Health & Human Servs., Preventing Tobacco Use Among Young People: A
Report of the Surgeon General 74 (1994). In 1992 only 4% of black high
school seniors smoked compared with 20% of white seniors. Id.
88. FN87. See Carole Tracy Orleans
et al., A Survey of Smoking and Quitting Patterns among Black Americans,
79 Am. J. Pub. Health 176, 178 (1989). See also U.S. Dep't Health &
Human Services, African-Americans and Smoking at a Glance: A Report of
the Surgeon General (1995) [hereinafter Smoking at a Glance]; Jacqueline
M. Royce et al., Smoking Cessation Factors Among Americans and Whites,
83 Am. J. Pub. Health 220, 224-25 (1993); R.C. Stotts et al., Smoking Cessation
among Blacks, 2 J. Health Care Poor Undeserved 307-19 (1991); Rachel Vander
Martin et al., Ethnicity and Smoking: Differences in White, Black, Hispanic,
and Asian Medical Patients Who Smoke, 6 Am. J. Preventative Med. 194, 197-98
89. FN88. Smoking at a Glance, supra
90. FN89. See R. Cooper & S.E.
Simmons, Cigarette Smoking and Ill Health among Black Americans, 85 N.Y.
St. J. Med. 344, 349 (1985); David B. Coultas et al., Respiratory Diseases
in Minorities of the United States, 149 Am. J. Respiratory & Critical
Care Med. S93-S97 (1994) (erratum published in 150 Am. J. Respiratory &
Critical Care Med. 290 (1994)) (reporting that the 1985 NHIS showed that
64% of African-American smokers and 35% of white smokers consumed less
than one pack per day); R.E. Harris et al., Race and Sex Differences in
Lung Cancer Risk Associated with Cigarette Smoking, 22 Int'l J. Epidemiology
592, 599 (1993) (reporting a study by the American Health Foundation that
found on the average that 35% of black men and 50% of black women smoked
ten or fewer cigarettes compared with 14% and 26% for white men and white
women, respectively); Terri Richardson, African-American Smokers and Cancers
of the Lung and of the Upper Respiratory and Digestive Tracts: Is Menthol
Part of the Puzzle?, 166 W.J. Med. 189, 190 (1997); Steven D. Stellman
& Lawrence Garfinkel, Smoking Habits and Tar Levels in a New American
Cancer Society Prospective Study of 1.2 Million Men and Women, 76 J. Nat'l
Cancer Inst. 1057, 1060 (1986).
91. FN90. Id.
92. FN91. See Richardson, supra note
89, at 190. See also Royce, supra note 87, at 223 (reporting that African-Americans
were 1.6 times more likely than whites to be categorized as "wake-up" smokers--those
needing to smoke within ten minutes of awakening).
93. FN92. It is tar that contains
the carcinogens causing cancer. J. Austoker et al., Smoking and Cancer:
Smoking Cessation, 308 British Med. J. 1478, 1482 (1993).
94. FN93. Richardson, supra note 89,
95. FN94. M.E. Jarvik et al., Nonmentholated
Cigarettes Decrease Puff Volume of Smoke and Increase Carbon Monoxide Absorption,
56 Physiology & Behav. 563, 569 (1994); G.E. Miller et al., Cigarette
Mentholation Increase Smokers' Exhaled Carbon Monoxide Levels, 2 Experimental
& Clinical Psychopharmacology 154, 160 (1994); Richardson, supra note
89, at 191.
96. FN95. Smoking at a Glance, supra
note 87; Karen Ahijevych & Mary Ellen Wewers, Factors Associated with
Nicotine Dependence among African-American Women Cigarette Smokers, 16
Res. Nursing & Health 283, 289 (1993); Centers for Disease Control
and Prevention, Changes in the Cigarette Brand Preferences of Adolescent
Smokers--United States, 1989-1993, 43 Morbidity & Mortality Wkly. Rep.
577 (1994) [hereinafter Changes in Cigarette Brand Preferences]; Centers
for Disease Control, Cigarette Brand Use Among Adult Smokers--United States,
1986, 39 Morbidity & Mortality Wkly. Rep. 665, 672 (1990); Coultas,
supra note 89, at S97; Royce, supra note 87, at 220; Stephen Sidney et
al., Mentholated Cigarette Use Among Multiphasic Examinees, 1979-1986,
79 Am. J. Pub. Health 1415, 1415-16 (1989); Wagenknecht, supra note 83,
97. FN96. See Royce, supra note 87,
at 224. See also Changes in Cigarette Brand Preferences, supra note 95,
at 578 (reporting that 82% of African-American teens chose menthol brands).
98. FN97. See generally Sterling &
Weinkam, supra note 85; Royce, supra note 87.
99. FN98. See Geoffrey C. Kabat &
James R. Hebert, Use of Mentholated Cigarettes and Lung Cancer Risk, 51
Cancer Res. 6510, 6510 (1991) (concluding that the use of mentholated cigarettes
does not explain black-white differences in lung cancer incidence rates
or time trends in rates); Stephen Sidney et al., Mentholated Cigarette
Use and Lung Cancer, 155 Archives Internal Med. 727, 729 (1995) (concluding
that there is an increased risk of lung cancer associated with menthol
cigarette use in male smokers).
100. FN99. See Cummings, supra note
28, at 698; Killer Billboards, supra note 29, at 14.
101. FN100. Id.
102. FN101. See J.R. Hebert et al.,
Menthol Cigarette Smoking and Esophageal Cancer, 18 Int'l J. Epidemiology
37, 44 (1989); Richardson, supra note 89, at 191.
103. FN102. See generally Health
Status of Minorities, supra note 79; David R. Williams et al., The Concept
of Race and Health Status in America, 109 Pub. Health Rep. 26 (1994), available
in 1994 WL 13504730.
104. FN103. Health Status of Minorities,
supra note 79.
105. FN104. Id. at tbl. 1.
106. FN105. Id.
107. FN106. Centers for Disease Control,
Smoking-Attributable Mortality and Years of Potential Life Lost--United
States, 1988, 40 Morbidity & Mortality Wkly. Rep. 62, 69 (1991).
108. FN107. See generally Centers
for Disease Control, Cigarette Smoking Among Blacks and Other Minority
Populations, 36 Morbidity & Mortality Wkly. Rep. 405 (1987); R. Cooper
& B.E. Simmons, Cigarette Smoking and Ill Health Among Black Americans,
85 N.Y. St. Med. J. 344 (1985).
109. FN108. Health Status of Minorities,
supra note 79, at 141 tbl. 1.
110. FN109. See U.S. Dep't Health
& Human Servs., 1 Executive Summary Report of the Secretary's Task
Force on Black & Minority Health 88 (1985).
111. FN110. See id.; C.C. Boring
et al., Cancer Statistics For African-Americans, 42 Ca: Cancer J. Clinicians
7 (1992); Harris, supra note 89, at 599.
112. FN111. Health Status of Minorities,
supra note 79, at 145 tbl. 7.
113. FN112. Id.
114. FN113. Id. The incidence of
lung and bronchus cancer in black women exceeds that of white women by
115. FN114. Harris, supra note 89,
116. FN115. Health Status of Minorities,
supra note 79, at 146 tbl. 8.
117. FN116. Id.
118. FN117. Loretta Baines, Study
Claims Black Females at Greater Risk from Smoking, Tri-State Defender,
Mar. 22, 1996, at 3A, available in 1996 WL 15887760 (reporting on study
conducted by Dr. Henry Glindmeyer, a professor at the Tulane University
Medical School). "The study found that black female smokers had 10 percent
less capacity than black females who have never smoked. White females had
eight percent less capacity than their nonsmoker contemporaries. White
males had seven percent less and black males had six percent less." Id.
119. FN118. See generally Cigarette
Smoking Among Blacks and Other Minority Populations, supra note 107.
120. FN119. Id. at 406.
121. FN120. See Jacqueline M. Royce
et al., Smoking Cessation Factors Among African- Americans and Whites,
83 Am. J. Pub. Health 220, 224-25 (1993). See also Richardson, supra note
89, at 190-93.
122. FN121. See generally Lorraine
P. Hahn et al., Cigarette Smoking and Cessation Behaviors Among Urban Blacks
and Whites, 105 Pub. Health Rep. 290 (1990). See also Richardson, supra
note 89, at 193.