The Biden administration said Friday it will no longer pursue a ban against menthol cigarettes and flavored cigars, after it received backlash from groups and individuals across the political spectrum, including activists in law enforcement, drug policy, and criminal-justice reform.
While the FDA had previously touted the ban as having the “potential to significantly reduce disease and death from combusted tobacco product use” by “reducing youth experimentation and addiction and increasing the number of smokers that quit,” opponents warned that the ban would disproportionately impact black Americans, as nearly 85 percent of black smokers consume menthol products, according to the FDA. Just 30 percent of white smokers use menthol products, which account for roughly one-third of all cigarette sales nationwide.
The administration’s announcement on Friday comes after it previously announced a delay of the ban in December in response to pushback from opponents.
As National Review previously reported, opponents warned that a ban would have a number of unintended consequences, including increasing interactions between black Americans and police, and supercharging the illicit drug market.
In March 2023, Law Enforcement Action Partnership (LEAP) led a group of organizations in sending a letter to HHS secretary Xavier Becerra and FDA commissioner Robert Califf warning that “policies that amount to prohibition for adults have serious racial justice implications.”
“Banning the legal sale of menthol cigarettes through licensed businesses will lead to illegal, unlicensed distribution in communities of color, trigger criminal laws in all 50 states, increase the incidence of negative interactions with police, and ultimately increase incarceration rates. There are far better solutions for reducing menthol cigarette use than criminalizing these products and turning the whole issue over to the police,” the letter added.
The groups noted the proposed ban came at a time that government data show cigarette smoking, menthol-cigarette smoking, and underage menthol smoking are at all-time lows.
The signatories included Drug Policy Alliance, National Association of Black Law Enforcement Officers, Reason Foundation, The Sentencing Project, Americans for Prosperity, Americans for Tax Reform, and others.
Meanwhile, tribal leaders sounded alarms about the proposed ban, warning it could be a boon to the cartels that already run rampant on tribal lands.
Marvin Weatherwax, the chairman of the Coalition of Large Tribes (COLT) and a member of the Blackfeet Tribal Business Council in the Blackfeet Nation in Montana, said cartels have a “big presence” in his community, where tribal police don’t have authority over nonmembers.
“They pretty much feel unmatchable; they’re just brazen, out in the open,” he told National Review. “It’s almost like it’s raining fentanyl on our community.”
“So if they’re able to sell those illegal menthol cigarettes on our reservation, I’m sure more of our people are going to die over drug overdoses because this is another vehicle for them to addict people,” said Weatherwax, who is also a Montana state representative.
Pete Forcelli, a retired deputy assistant director at the Bureau of Alcohol, Tobacco, Firearms and Explosives and former NYPD officer, previously warned that a ban could have unintended consequences on crime.
He said organized-crime groups use money made from selling cigarettes to fund other things such as gun smuggling, drug smuggling, human trafficking, and other operations. Some illicit-tobacco trade has been traced back to terror groups like Hezbollah.
The ban would create a new market for illicit-tobacco smugglers, he warned. “I know the cartels would capitalize on being able to smuggle mentholated cigarettes into the U.S.”
Massachusetts, which instituted a first-in-the-nation ban on sales of flavored tobacco in 2019, is contending with a growing illicit-tobacco market. As such, the state’s tobacco task force has recommended criminalizing possession of menthol cigarettes. This despite advocates for the bans claiming they would never criminalize individual use or possession.
A similar ban took effect in California in December, and the Golden State is now faced with tobacco companies trying to evade the ban by selling cigarettes that mimic menthol.
And National Black Farmers Association president John Boyd Jr. Boyd previously told National Review he opposes the menthol ban because it will hurt black farmers and black communities. “What do the farmers do that have equipment?” he said. “We have both curing bars that we can’t use for anything else, tobacco harvesters, tobacco planters that you can’t use for anything else. What are we going to do with this equipment and overhead and debt that we have?”
Ultimately the White House appeared to think better of a policy that could anger black voters in an election year; a poll in November found a majority of core Biden voters opposed the proposed ban.
Fifty-four percent of “core” Biden voters — defined as minority voters or non-conservative white voters under age 45 — oppose the proposed ban, according to the polling by Democratic pollster Cornell Belcher commissioned by Altria tobacco.