A national ban on menthol cigarettes is inching closer. This month, the United States Food and Drug Administration will publish final regulations on the matter, according to the agency’s Spring Regulatory Agenda. The FDA has been considering making the ban effective one-to-two years after publication.
A public comment period last year saw 175,000 comments submitted on the proposed menthol cigarette ban, with another 71,000 for a similar restriction on cigars. Based on my review, a majority appear to be against the ban. But there’s no indication the FDA will listen. The agency says it’s “committed to completing the rulemaking process as quickly as possible,” but has yet to publish an analysis of scientific data, expert opinions or comments.
If the ban is enacted, make no mistake: Black and Latinx communities will bear the brunt of associated law enforcement.
We should be deeply troubled. Because street-level policing has never been under the control or influence of the FDA.
The FDA, of course, denies this. In repeated announcements of its plan since 2021, it has emphasized that people who smoke menthols—comprising less than 40 percent of the US cigarette market but preferred by 85 percent of Black Americans and 48 percent of Hispanic Americans who smoke—will not be targeted. In proposed rules released last year, the agency stated that “FDA cannot and will not enforce against individual consumers for possession or use of menthol cigarettes. FDA’s enforcement will only address manufacturers, distributors, wholesalers, importers, and retailers.”
If this is the extent of the assurance we have, we should be deeply troubled. Because street-level policing has never been under the control or influence of the FDA.
When Eric Garner was killed in 2015 by New York City police officers, who put him in a prohibited chokehold for selling untaxed cigarettes on the street, it was a case of local police enforcing a state law. If a menthol ban leads to a large illicit market—and everything we know about drug prohibition says it will—then it’s not the FDA, directly, that we need to worry about.
All 50 states and many municipalities already treat illegal tobacco sales and distribution as a crime, with 44 classifying it as a felony and 37 carrying mandatory minimum sentences. These laws are designed to protect licensed business interests and governments’ tax revenues. An FDA decision to ban menthols would have a downstream effect on these jurisdictions, creating new avenues for enforcement.
Do we really think that a market of millions of people who smoke menthols will just disappear, when it is easy to mentholate tobacco?
We’re talking about a national menthol market worth tens of billions of dollars annually. And evidence suggests that many people who smoke menthols are resistant to non-mentholated substitutes if the option to continue smoking menthols exists.
We should note, meanwhile, that the FDA has yet to authorize a single menthol vaping product, despite the recommendation of its own scientists—thereby suppressing a non-punitive way of encouraging many people who smoke menthols to switch to a far safer option.
Do we really think that a market of millions of people who smoke menthols will just disappear, when it is easy to mentholate tobacco? Of course not. Demand will persist and huge profits will be on the table.
This is illustrated by the fact that a giant illicit market for cigarettes, which are heavily taxed when sold legally, already exists in the US, and is predicted to grow. Wide-ranging estimates suggest that illicit sales comprise up to 21 percent of the country’s cigarette market. This market is particularly evident along national borders.
It is inevitable, too, that law enforcement in many places would interpret “supplying” menthols in the broadest terms.
Any insistence that enforcement of a menthol ban would only target people who operate illicit menthol markets carries little weight. As our existing illicit drug markets illustrate, the people operating the menthols market at the lower levels most susceptible to enforcement will predominantly be from the communities that market serves—overwhelmingly, in this case, Black and Latinx communities that are already disproportionately policed.
It is inevitable, too, that law enforcement in many places would interpret “supplying” menthols in the broadest terms. Take our experience with drug-induced homicide laws: A huge proportion of these prosecutions have been brought against people who were just using and sharing drugs with the person who died, often friends or family members. “Fewer than half of cases we analyzed involved a traditional buyer/seller relationship,” said Leo Beletsky, a researcher with Health in Justice and Northeastern University.
What are the implications for people who casually offer an illicit menthol cigarette to friends, or give a pack to a family member? After Massachusetts implemented a menthol ban in 2020, its Illegal Tobacco Task Force recommended creating new criminal statutes allowing for prison sentences—including for the mere possession of unstamped cigarettes.
In proposing its ban, the FDA rightly points to severe health disparities faced by Black communities. But a ban will fail to solve this when people are sure to continue smoking menthols or switch to other cigarettes, as we saw in Massachusetts. And it will inflict further harms.
It is in tobacco harm reduction—not the legality of menthol cigarettes—where the FDA should adopt radical policy change.
The FDA’s promises of limits to enforcement amount to misinformation, when it will have zero ability to oversee the nation’s 18,000 local law enforcement agencies. Its apparent benevolence will be little comfort to people subjected to arrest and prosecution.
Tobacco harm reduction is a strongly evidenced way to reduce health disparities suffered by the predominantly marginalized populations who smoke cigarettes. The FDA, with its remit to regulate all nicotine products, has a powerful role to play here.
Yet instead of ensuring that a wide range of devices and flavors are available, instead of unequivocally promoting far safer alternatives to smoking as other countries have done, the agency has spread misinformation and seemingly sought to strangle availability.
It is in this area—not the legality of menthol cigarettes—where the FDA should adopt radical policy change.
The scenario seems inevitable: people in communities of color selling illicit menthol cigarettes. Enter the police. History has shown us how this ends.
In pursuing the prohibition of a class of omnipresent, entrenched consumer products, the FDA is going against a national tide to decriminalize and legalize other substances. It is repeating past mistakes that have had devastating consequences, above all for Black and Latinx Americans.
It is for this reason that organizations like the ACLU, the Drug Policy Alliance, Students for Sensible Drug Policy, the National Black Justice Coalition and my own Law Enforcement Action Partnership, among many others—together with Eric Garner’s mother, Gwendolyn Carr—have questioned or opposed the idea of banning menthols.
The scenario seems inevitable: people in communities of color selling illicit menthol cigarettes, and local businesses and officials objecting. Enter the police. History has shown us how this ends.
The Drug Policy Alliance previously provided a restricted grant to The Influence Foundation, which operates Filter, to support a Drug-War Journalism Diversity Fellowship. The Law Enforcement Action Partnership was previously the fiscal sponsor of The Influence Foundation.