Race, Health Care and the Law 
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Being a Black Smoker

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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)

Table 1(109)

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)

C. Summary

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. 9 (1990).

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 Smoking].

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 (1990).

89. FN88. Smoking at a Glance, supra note 87.

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, at 190.

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, at 1053.

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 16.2%. Id.

115. FN114. Harris, supra note 89, at 599.

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.


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