How Big Tobacco flooded the FDA with public comments to kill a menthol cigarette ban by Jason McLure at STAT

After the FDA drafted language to outlaw the manufacture of the mint-flavored cigarettes in 2022, it asked for public comments — and was hit with an avalanche of 175,000 messages over three months. …

Such campaigns usually have little effect on rulemaking because agencies typically consider the substance of comments rather than the volume, said Steven Balla, co-director of the Regulatory Studies Center at George Washington University. “You can imagine a case where there are a million ‘I hate this rule’ comments,” Balla said. “But the agency’s response will mostly be to the handful that are substantive.”

What’s novel about the menthol campaign is that the tactic seems to have worked.

In this case, the Biden administration was looking for an excuse to withdraw the rulemaking, which had upset the black base it needed in the upcoming election, but that just proves the strategy is worth the shot. And it seems to me that with AI, it should be relatively easy for interest groups to help citizens draft completely unique, well-argued, and (most importantly) substantive letters. Of course, on the receiving end, the agencies will want to use AI to triage a massive influx. I wonder if courts would let them since it wouldn’t be quite the same thing as using computers to count identical form letters.