Thursday, May 6, 2021


Last week, the U.S. Food and Drug Administration announced its intent to ban menthol cigarettes under the authority it was given by the 2009 Tobacco Control Act. 

This is the latest in a series of nanny-state attacks on consumer choice over the past two years with regard to tobacco, including a federal ban on most flavored vape products and the nationwide raising of the smoking age to 21.

This proposed action will likely have little positive effect for public health and will definitely have a negative effect for criminal justice. At a time when the country is engaging in a national conversation about the consequences of over-policing in minority communities, the FDA’s proposed menthol ban is tone-deaf and destructive.

First of all, the menthol ban would likely have little to no effect on helping smokers quit or switch to more healthy alternatives. As Guy Bentley of the Reason Foundation points out, the academic literature suggests menthol bans have a poor record of reducing smoking. Studies surveying the effect of menthol bans in the European Union and Canada have shown that the vast majority of menthol smokers did not quit after the prohibition went into effect.

In fact, 79% of respondents in Canada said they either switched to non-menthol cigarettes or continued to smoke menthols. This is particularly discouraging considering a study in the Journal of the National Cancer Institute found that menthol smokers had a 30% lower chance of developing lung cancer than non-menthol smokers.

In plain English, menthol cigarettes may actually be safer to smoke than traditional cigarettes … and less addictive, too. The same study found that “there is no evidence that menthol smokers have a harder time quitting smoking” than non-menthol smokers.

While the public health benefits are negligible at best, the criminal justice repercussions could be quite dire. Eighty-five percent of Black smokers consume menthols compared to just 30% of White smokers. By banning menthol cigarettes, the FDA is opening the door for the shadow economy to fill in the void for consumer demand. This will lead to menthol smokers having more interactions with police, potentially with serious repercussions.

Indeed, the American Civil Liberties Union (ACLU) mentioned the infamous Eric Garner case, among others, in a coalition letter on the menthol ban, noting the risk of police playing enforcer for the nanny state. Garner died at the hands of police on Long Island in 2014 while being arrested for selling “loosie” cigarettes on the street.

As the ACLU’s senior legislative counsel Aamra Ahmad put it in the letter: “Time and time again, we see encounters with police over minor offenses — for Daunte Wright it was expired tags, for George Floyd it was using a counterfeit bill, for Eric Garner it was selling loose cigarettes — result in a killing.”

The harsh truth is that when the government bans a product, it implicitly condones armed agents of the state to enforce the prohibition, potentially with lethal force. With the War on Drugs we’ve seen time and time again how enforcing questionable laws leads to a body count — especially in the past half-century with the rise of militarized policing as seen in no-knock SWAT raids. Considering the disproportionately high rate of black smokers who choose menthols, this ban could have deadly consequences.

To a broader point, the prospective ban is simply another misguided step in the wrong direction the FDA has been heading for years to promote the health of smokers. The unintended consequences of prohibition in the United States have been well known for over a century now — ever since the Eighteenth Amendment to the Constitution banning alcohol was ratified in 1920.

As Americans for Tax Reform put it in a coalition letter I’m proud to have signed this week:

“If the FDA wishes to reduce smoking rates, the best way of doing this is not through bans, but rather embracing life-saving new technologies to help smokers quit. The science is now overwhelming that the most effective way for smokers to quit is through the use of non-combustible reduced risk tobacco alternatives, ranging from vapor and ‘heat not burn’ devices, to oral nicotine delivery systems or moist loose tobacco (which the FDA already allows to be marketed as reducing the cancer risk for persons who make the switch).” 

It is almost universally accepted that using tobacco products is detrimental to health. However, human history and our present reality suggests that tobacco won’t be going away anytime soon. All-out prohibitions typically have less public health benefits than expected and even worse consequences for crime. Instead of continuing down the dark path of arresting citizens for their consumption choices, the federal government should embrace less toxic tobacco alternatives that have been pioneered over the past decade as a way of promoting the health of smokers.

• Casey Given is the president and executive director of Young Voices.

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