Biden Menthol-Ban Proposal Draws Harsh Criticism from Racial-Justice Activists, Conservatives Alike

The Biden administration is receiving pushback from groups and individuals across the political spectrum over its proposed ban on the manufacture and sale of menthol cigarettes and flavored cigars.

The FDA, which is expected to publish a final rule in the fall, has 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.”

“The proposed rules would help prevent children from becoming the next generation of smokers and help adult smokers quit,” Health and Human Services Secretary Xavier Becerra said. “Additionally, the proposed rules represent an important step to advance health equity by significantly reducing tobacco-related health disparities.”

But activists in law enforcement, drug policy, and criminal-justice reform have argued that the ban would discriminate against 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.

Part of the rationale behind the ban is to combat lung cancer in black men, who exhibit the highest rates of the disease.

But opponents warn 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, Law Enforcement Action Partnership (LEAP) led a group of organizations in sending a letter to 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 adds.

The groups note the proposed ban comes at a time that government data show that cigarette smoking, menthol-cigarette smoking, and underage menthol smoking are at all-time lows.

The signatories include Drug Policy Alliance, National Association of Black Law Enforcement Officers, Reason Foundation, The Sentencing Project, Americans for Prosperity, Americans for Tax Reform, and others.

Civil-rights attorney Ben Crump, during an appearance on the Bakari Sellers Podcast, also spoke out against the proposed ban: “I would support a ban on menthol too, if they were going to have a ban on cigarettes altogether. But don’t ban the menthol cigarettes that 85 percent of African Americans smoke because now you’re arbitrarily putting your hand on the scale . . . the same they do with crack cocaine and powder cocaine.”

Eric Garner’s mother, Trayvon Martin’s mother, and George Floyd’s brother all criticized the proposed ban in a letter to White House domestic policy adviser Susan Rice. “We do not need another stop and frisk policy,” the trio wrote. “If the President decides to move forward with the proposed menthol ban without such consideration, it will unleash a Category 5 unintended consequences storm in our community, which many members of our community would find quite discriminatory.”

Liz Komar, sentencing reform counsel at The Sentencing Project, said while the ban wouldn’t actually criminalize menthol, it would have the effect of criminalizing menthol cigarettes throughout most of the states, because it would impact what cigarettes are taxed and regulated.

“Many states criminalize the sale of untaxed cigarettes. And if menthol cigarettes weren’t federally legal, they would fall into that category,” she said.

“Menthol cigarettes are disproportionately used by the black community, that is part of the rationale behind this ban — that it’s an attempt to correct health disparities — and that is an incredibly worthwhile goal,” she said. However, that means criminalization that could result from this ban would also disproportionately impact the black community.

Maritza Perez Medina, director of Drug Policy Alliance’s office of federal affairs, told National Review that banning flavored tobacco will not stop people from using it.

“If we’re concerned about tobacco use in communities of color, let’s invest in health services and in public education for those communities so that people can make informed choices,” she said. “But I don’t think the government needs to eventually come down on banning substances because we’ve seen what that’s done after 50 years of a failed drug war. We know that drug bans don’t work. It doesn’t stop problematic drug use. It doesn’t stop the illicit market, and instead it sends people to jail and prison.”

She acknowledged that while proponents of the ban will note that tobacco companies have targeted communities of color and created dangerous public-health concerns with tobacco and nicotine use, “on the flip side, I have public-health concerns with banning a substance like this because it will mean that people will turn to illicit sources for menthol cigarettes or that they’ll be caught up in the criminal legal system, which brings a host of negative public-health consequences.”

A quick look at how statewide bans have played out in the only two states where such a policy currently exists — Massachusetts and California – hardly offers any arguments in favor of the ban.

Massachusetts, which instituted a first-in-the-nation ban 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.

Proposed bans on menthol cigarettes have drawn the ire of both Democrats and Republicans. The issue has played out in New York in recent months, where Democratic governor Kathy Hochul announced a proposal to ban all flavored tobacco in February as part of the state’s 2023-2024 fiscal year budget.

“This is a public health matter,” the governor said of the proposal, arguing that the ban would help prevent a new generation from going down “the path of a lifetime smoking addiction.”

State legislators rejected the proposal in finalizing the state budget earlier this month.

State assemblywoman Crystal Peoples-Stokes, a Democrat from Buffalo who serves as the deputy majority leader, echoed concerns about a ban disproportionately impacting people of color.

“I understand the impetus of the policy is to get people to stop smoking, which is a good thing,” Peoples-Stokes said. “But I think it shouldn’t be this selective. It goes way too deep . . . and would be a mistake, so I will be working to have it excluded.”

That a ban was unfavorable in New York, where Democrats hold a supermajority in the state legislature, is bad news for the Biden administration’s proposed rule, which is likely to face legal challenges.

Diane Goldstein, a 22-year veteran of law enforcement who has served as the executive director of LEAP since 2021, questioned why the government is giving law enforcement “one more public-health issue to solve because we’re never going to be able to fix it.”

“You can’t just pick a product that’s used in a marginalized community and think that there’s not going to be over-policing of that product,” Goldstein told National Review.

She went on to say that while the FDA has said it’s not going to make it illegal for consumers to possess the outlawed tobacco, the situation in Massachusetts offers evidence that a ban can quickly end in criminal penalties for people who possess or distribute banned products.

As bans are put into place at the state and local level, “it’s going to be one more unmandated fiscal burden placed onto law enforcement.”

“We are talking about deregulating a substance and giving it over to bad actors,” she added. “This is no different than what our drug policy has done with the issue of fentanyl. Every time we prohibit substances and we don’t treat them like a public-health issue, bad actors — drug-trafficking organizations, cartels, other criminals — use that in order to distribute products that are going to be unsafe, unregulated, and it’s going to create violence.”

Resources will be pulled from the local, state, and federal levels to battle a new illicit market that will grow, she predicted.

Pete Forcelli, a retired deputy assistant director at the Bureau of Alcohol, Tobacco, Firearms and Explosives and former NYPD officer, 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.”

And those selling tobacco on behalf of these groups are not “high-ranking thugs and mobsters” but are instead young kids who will come in contact with police. A growing illicit-tobacco trade also raises health concerns about what substances could work their way into unregulated cigarettes.

Having police enforce bans on flavored tobacco would only further co-opt resources from police forces that are already stretched thin and struggling to recruit.

“One of the reasons they can’t recruit cops is because they’ve been demonized and, in some instances, now you’re going to ask those same cops that are still there to enforce very unpopular laws. It would spread them thinner than they already are, but it absolutely would hurt recruiting and retention efforts,” said Forcelli, who worked in training and recruitment for ATF before retiring.

Ronald Hampton, a retired D.C. police officer and former executive director of the National Black Police Association who now works as a family-support worker in D.C., said the relationship between black Americans and the police is “already at an all-time low.”

“What is it that’s to be gained by having them be the person to ask you ‘what kind of cigarette are you smoking’ or checking out the stores in our community to see whether or not they’re selling [banned] cigarettes,” he said.