Banning Menthol Cigarettes Criminalizes Black Communities, Say Advocates

September 24, 2019

Smoking might be out of vogue, but flavored cigarette bans—like those of flavored vapesare trending. Several cities in the United States, most recently San Francisco, have prohibited or restricted the sale of menthol cigarettes. Other jurisdictions, such as Los Angeles and New York City, are considering bans.

Menthol is a mint-flavored compound that reduces the harsh taste of smoke inhalation. While menthols make up 35 percent of the overall cigarette market, an entrenched racial disparity exists, at least in part as a result of targeted marketing by tobacco companies: 89 percent of black smokers prefer menthols. Smokers, like any people who use drugs, are unlikely to respond to bans by suddenly changing their preferences. Prohibiting the sale of these cigarettes could therefore further criminalize communities of color.

On September 19, members of the Law Enforcement Action Partnership (LEAP*) and the National Organization of Black Law Enforcement Executives (NOBLE) held a webinar to advocate against menthol bans.

Major Neill Franklin, executive director of LEAP, explained that if we prevent convenience stores and gas stations from selling menthols, many ordinary people will purchase the cigarettes from neighboring jurisdictions and sell them in the prohibited area for a higher price.

“We know that laws are enforced in a way that targets people of color. [Menthol bans] create more space for that to happen.”

“We know [these bans] will result in an illicit underground market of menthol cigarettes in the black community,” he said, citing the increased riskiness of unregulated products that applies in any drug market. “If you have a robust underground market for these products, your health problems are going to double, triple within a matter of days.”

These concerns aren’t just theoretical. According to Charles Hawthorne of the Harm Reduction Coalition, the city of San Francisco, which banned menthol sales last June, has already seen its illicit market expand.

“Criminalization creates more situations for people to interact with police,” he told Filter. “We already know that laws are enforced in a way that targets people of color. [Menthol bans] create more space for that to happen.”

Advocates for menthol bans cite evidence that over the past decades, while overall cigarette consumption has declined among adults, menthol cigarette use has increased, particularly among youth.

Major Neill Franklin. Photo by Gage Skidmore via Flickr/Creative Commons


Major Franklin said banning the sale of menthols will not protect youth. “With a ban you will put more cigarettes into the hands of young people,” he said, explaining that the regulated market, which restricts sales and requires ID for purchase, protects youth more than the underground market—through which anyone can buy cigarettes on a street corner. What’s more, he added, illicit market entrepreneurs recruit kids to sell their products.

With these bans, “I guarantee you will see use go up around kids,” he said.

Commissioner Jiles Ship, president of NOBLE, worries that in addition to driving youth towards unregulated products, banning the sale of menthols will increase negative interactions between the black community and police. “Whether it is real or perceived, there is a distrust of local police,” he said. The bans “will have a counter effect and further damage community-police relations.”

He recommends instead that communities concerned about smoking continue to use what works: Education, limited smoke-free areas, and tobacco cessation campaigns have drastically decreased smoking rates over the past few decades.

He also suggests that states follow New Jersey’s example and develop a policy of looking at community impact whenever a new public safety issue is up for debateincluding whether the new law would have a disparate impact on vulnerable populations.

“We don’t need another Eric Garner situation,” he said, referring to a black man killed by police in 2014 for selling loose cigarettes in New York.

History has shown that simply banning products we don’t like doesn’t keep them away from youth or adults.

Yvette McDowell, a former prosecutor from Pasadena, California, said, “Let’s team up with youth in communities of color to create robust educational campaigns around smoking. Let’s invest money in these communities. Whenever you get young people involved in issues that impact them, you will have much better results.”

History has shown that simply banning products we don’t like doesn’t keep them away from youth or adults. We tried it with alcohol and saw the mafia pick up control of the market. We continue to ban many drugs, driving profits into the hands of cartels and gangs without any drop in rates of use.

For several decades, we’ve taken a different approach with cigarettes, choosing evidence-based educational campaigns over prohibition. It’s working. Smoking is not as “cool”or as prevalent—among youth or adults as it was a generation ago. But banning cigarettes has the potential to reverse this progress.

*LEAP is the fiscal sponsor of The Influence Foundation, which operates Filter.

Top photo via Wikimedia Commons

Tessie Castillo

Tessie is an international journalist and author from Raleigh, North Carolina, whose writing explores criminal justice, drug policy and harm reduction. Her first book, Crimson Letters: Voices from Death Row, offers a searing portrait of men on North Carolina's Death Row and the broken systems that put them there. Sign up for her newsletter to receive her latest articles.

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