How the FDA’s Proposed Menthols Ban Could Harm Black Communities

Bad experiences with law enforcement are often cumulative: The more negative interactions one has with the police early in life, the higher one’s likelihood of being arrested later in life.

So what would happen if we banned a product from the market that is disproportionately used within black communities—particularly when we know that these communities are more likely to have harmful police encounters?

The Food and Drug Administration is seeking just such a ban. Right now, a plan for prohibiting the sale of menthol cigarettes is in the works, and the agency is expected to open the proposal to public comment early this year. Though the FDA’s intentions are noble, the enforcement efforts needed to make such a ban effective could have a disparate and fundamentally negative impact on communities of color.

To begin, it’s important to acknowledge the sad reality that marketing menthol cigarettes to people of color has been largely successful. Over 88 percent of African-American smokers prefer menthols to unflavored cigarettes, and they comprise around 30 percent of the overall menthol market.

These figures suggest potential public health gains from ridding the market of menthol cigarettes. But they also suggest if that if an illicit market emerges in the wake of a ban, dealers will disproportionately target people of color. Those who attempt to purchase menthols illegally once the ban is in place could be subject to citations, arrests and fines—for which the penalty for not paying can be jail time—simply for buying a smoke.

Several black community voices have raised concerns over this possibility, including the National Organization of Black Law Enforcement Executives (NOBLE), which released a statement laying out concerns “about the unintended consequences of a ban, which we believe would precipitate a robust and troubling illicit market … NOBLE is also concerned that enforcement activities could lead to inequities in law enforcement in African American communities.”

Perhaps in response to this criticism, ban advocates have promised that a prohibition will only target sales of menthols, as opposed to their purchase, use or possession. Yet evidence indicates that most drug users buy from dealers of their own race, and there’s no reason to think illegal cigarette sales would be any different. There is also a risk, as we have seen with the application of drug-induced homicide laws, of definitions of “dealer” being stretched to include friends and family members. Sanctions falling only on dealers, then, could still have racially disparate results.

Nickel-and-dime laws fall the hardest on the poor.

Worse still, while the federal model may only target dealers, states and municipalities starved of revenue could easily decide to make up their losses with fines on dealers and smokers alike. Indeed, lawmakers in Michigan—where selling a loosie can already cost you $500—recently proposed just this policy. An advocate of the bill callously quipped, “I’m sorry we’ve got to hit the little people who want to buy loosies for $1, but we’ve got to stop [the loitering].”

That sentence encapsulates a troubling history in our criminal justice system: Nickel-and-dime laws (loitering and vagrancy laws, jail time for unpaid fines and fees, etc.) fall the hardest on the poor, and a ban on menthol cigarettes in particular—whether it targets dealers or consumers—will inflict significant damage on poor and black communities.

To see what is at stake, one need look no further than New York City, where penalties for selling illegal cigarettes already include a $600-per-carton fine as well as potential criminal charges. It was there that in 2014, Eric Garner was choked to death by an officer who claimed Garner had resisted arrest for selling loosies.

Given these facts, we should be wary of adding another tool for law enforcement to profile, nickel-and-dime, and possibly jail people of color.

Of course, a new “war on cigarettes” may never materialize; after all, America’s illicit cigarette market, while substantial, is largely nonviolent when compared to illicit drug markets. But experts suggest that this is primarily because the illicit cigarette trade has not so far been a high enforcement priority. And this point is crucial to any discussion.

Enforcing a menthol ban—even just against dealers—would increase black communities’ exposure to police.

If advocates want a menthol ban to have any teeth, they will need to enforce it. Unfortunately, research has shown that enforcement of an in-demand substance ban fosters the violence and other undesirable outcomes we associate with illicit markets.

Policymakers thus face a difficult trade-off: Cigarettes are terrible for one’s health, and tobacco companies have successfully marketed menthols to African-Americans. But enforcing a menthol ban—even just against dealers—would increase black communities’ exposure to police. The alternative is to implement a ban and hope for lax enforcement, which amounts to little more than signaling.

Policymakers should look to solve the smoking epidemic in poorer, minority communities. But in doing so, they must consider the range of tools at their disposal.

Rather than punishing those who are currently using a legal product, increased enforcement of existing regulations targeting underage use (which was the impetus behind the FDA commissioner’s desire for a ban) could produce better public health outcomes without inviting the ugly side effects of an illicit market. Regulators could also reduce these side effects by phasing out the product over time.

An outright, immediate ban, on the other hand, could prove a solution worse than the problem.


Photo by Matt Popovich on Unsplash

Jonathan Haggerty and Arthur Rizer @jhaggrid

Jonathan (pictured) is R Street Institute’s criminal justice and civil liberties manager. Arthur (@arthurrizer) is a former police officer and R Street’s criminal justice and civil liberties director.

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