It’s Been A Long Time Coming…A Long Time Coming…But I Know A Change is Gonna Come…Oh Yes It Will! The email from the African American Tobacco Control Leadership Council (AATCLC ) was jubilant, invoking the Civil Rights era with the iconic lyrics of the Sam Cooke song. The organization was celebrating the FDA’s April 29 announcement of a federal ban on the sale of menthol cigarettes and flavored cigars.
The ban was the culmination of relentless advocacy, including the AATCLC’s lawsuit against the FDA. The organization’s press statement concluded: “For decades, the industry marketed menthol cigarettes to our kids and communities with exploitative and discriminatory tactics. As we work to confront systemic racism and injustice in all forms, banning menthol cigarettes is one part of the push toward racial justice, health equity, and protecting Black lives.”
But is it? Will a national prohibition on the menthol brands which nearly 85 percent of Black smokers smoke—Asian American and Hispanic smokers also disproportionately choose menthols—really support racial justice and protect Black lives?
The planned ban has sharply divided advocates who would be allies on other issues.
The FDA has emphatically stated that enforcement of the ban, which may take years to implement given likely legal challenges, will only be targeted at manufacturers and distributors, not individuals in possession of menthol cigarettes. But there is no guarantee, especially given how law enforcement operates in communities of color.
Reflecting the complexity of the issue, the planned menthol ban has sharply divided advocates who would be allies on other issues. The AATCLC, the NAACP, the Foundation for a Smoke-Free World and numerous Black-led health organizations, among others, support a ban. The ACLU, Consumer Advocates for Smoke-Free Alternatives, the Drug Policy Alliance (DPA) and the National Association of Black Law Enforcement Officers, among others, oppose it.
A menthol cigarette ban would disproportionately affect communities of color, resulting in criminalization and more incarceration.
We can avoid this approach. https://t.co/i1P96qo0AQ
— ACLU (@ACLU) April 29, 2021
“This ban is the absolute wrong move at the absolute wrong time in our history,” Crystal Swann, a senior policy fellow at the Progressive Policy Institute, told Filter.
“My biggest fear is how this ban will impact communities that already suffer from over-policing,” Queen Adesuyi, a policy manager at DPA’s Office of National Affairs, told Filter. “The alleged sale of loose cigarettes was enough to harass and murder Eric Garner in 2014, before a manufacturer ban.” Eric Garner’s mother, Gwendolyn Carr, previously spoke out against a proposed menthol ban in New York City.
Nearly 80% of Black smokers smoke menthol. How will facilitating an underground market for menthol cigs be beneficial to public health? Bans don’t make products or it’s use disappear — it just makes it all more risky. Will menthols be the latest way to harass Black ppl? #QTNA
— Queen Adesuyi (@QueenAdesuyi) April 29, 2021
There is no disagreement about the massive toll of smoking on the health of the Black community. Tobacco-related diseases are the leading cause of death for African Americans, claiming 45,000 lives each year. Lung cancer kills more Black people than any other type of cancer.
Health disparities between Black and white smokers are stark: Although African Americans usually smoke fewer cigarettes and start smoking cigarettes at an older age, they are more likely to die from smoking than whites. The smoking-attributable mortality rate is 18 percent higher for Black people (338 deaths per 100,000 population, versus 286 for whites).
Access to health care, especially for disease prevention and treatment, is crucial for smokers, and here, too, there are severe racial disparities. In 2018, the uninsured rate for African Americans was 9.7 percent, while it was 5.4 percent for whites.
“Why aren’t we looking at smoking as the public health crisis that it is,” asked Swann, “and focusing our resources, not on criminalizing the addicted, but on ensuring access to treatment, cessation and harm reduction tools?”
The FDA’s justification for the menthol ban is that it will “help save lives and promote public health.” But we’ve known the basic facts about race and smoking for decades. If a menthol ban is the solution to this problem, why did the FDA take 10 years and a lawsuit to announce one?
Drug prohibitions start with manufactured panics, often justified through emotional appeals “to protect the children.” It’s a difficult message to oppose, because who could disagree with a law to keep drugs away from kids?
But it doesn’t actually work out that way. Cannabis prohibition, for example, has been catastrophic for Black people and despite “reefer madness,” weed has always been widely available to everyone. It’s stunning that tobacco control organizations haven’t learned the lessons of a century of racist enforcement of marijuana laws that fueled mass incarceration and destroyed the lives of millions of people of color. Campaigns to legalize and regulate cannabis for adult use center on the need to repair the harm of racism.
But with the complicity of the media, anti-smoking groups whipped up a panic around menthol, arguing it makes cigarettes more attractive to “kids,” uniquely addictive, and more difficult to quit. The flavor would addict yet another generation, was the mantra.
“The rate of decline seems to be the same for all cigarette types, which suggests that there is nothing extra special about menthol vs. regular cigarettes in terms of addiction potential.”
These “menthol madness” claims don’t stand up to scrutiny. Why people start and continue smoking cannot be reduced to a flavor, nor to tobacco company advertising campaigns that happened decades ago—there are many other factors involved. For example, youth initiation is closely correlated with having a parent who smokes, so helping adults to quit is critical to prevent young people from starting.
The good news, although you wouldn’t know it from tobacco control press releases, is that young-adult smoking rates are at historic lows while menthol cigarettes are still being sold.
“Youth cigarette smoking, including menthol cigarettes, has continued a steady decline since 2017,” Dr. Ray Niaura, a tobacco researcher and professor at the School of Global Health at New York University, told Filter. “The rate of decline seems to be the same for all cigarette types, which suggests that there is nothing extra special about menthol vs. regular cigarettes in terms of addiction potential.”
Real Ways to Bring Down Smoking Rates
The social determinants of smoking play a vital role and are often ignored by anti-smoking groups looking for quick fixes to sky-high smoking rates among vulnerable populations. The more life disadvantages people face, the more likely they are to smoke and to have difficulty stopping. Quit rates differ between white and Black smokers. A number of studies have shown that whites were more likely to quit than African Americans.
“If you are experiencing a lot of stress—whether it’s because you’re unemployed, struggling with an alcohol problem, or coping with mental illness—there’s evidence you’re more liable to smoke to manage stress,” Dr. Adam Leventhal, the director of the Health, Emotion and Addiction Laboratory at the University of Southern California, said. Rates of unemployment, homelessness, substance use disorders, and serious psychological distress are disproportionately high among African Americans.
Instead of addressing social determinants and structural drivers of smoking, we’re offered a ban that costs the government nothing.
Racism is pervasive in the US. Black people face the stresses of routine racism in daily life, from driving while Black to bird-watching while Black. Many marginalized groups experience higher rates of post-traumatic stress disorder (PTSD) than white people. Racial trauma stems from individual experiences with racist systems, including police violence and murder.
So for better or worse, smoking is for many a way to cope with a stressful life full of deprivation and discrimination.
Nicotine is a unique substance. It is not intoxicating like alcohol, and if inhaled, the effects are delivered in seconds. Nicotine can reduce symptoms of depression and anxiety, suppress appetite and increase attention and memory. Although it’s taboo to admit, smoking is also enjoyable. “If you are limited in your life about the types of things you can do for fun because of your income or disability,” Leventhal explained, “it is understandable why you would turn to a product that instantly and reliably delivers pleasure, like a cigarette.”
Yet instead of addressing the social determinants and structural drivers of smoking to bring down the numbers of smokers—which means ongoing investments into physical and mental health care, drug treatment, housing, and jobs with a living wage—we’re offered a ban that costs the government nothing and doesn’t address root causes, along with a hefty dose of paternalism and menthol shaming.
The most zealous menthol cigarette ban proponents are unfortunately also opposed to vaping.
An immediate way to bring down rates of smoking is to promote vaping. E-cigarettes are more effective for smoking cessation than nicotine-replacement therapies and they are dramatically safer. Millions of smokers have already transitioned to vaping.
But numerous US jurisdictions and the FDA itself have stood in the way of such a shift. The most zealous menthol cigarette ban proponents are unfortunately also opposed to vaping. “No, I am not in favor of menthol smokers switching to vaping/E-cigarettes,” Carol McGruder, a founding member and co-chair of the AATCLC, told Filter. “E-cigarettes have never been reviewed nor approved by the FDA. I will revisit my position when there is an FDA approved E-cigarette cessation product.”
But smokers cannot wait for the FDA to approve products that are widely shown to help people quit cigarettes—not while there is a US smoking epidemic that tragically claims the lives of 480,000 people every year.
Inevitability of an Illicit Market, Targeted Punishment
“I worry about the infantilization of Black people by white people and even Black people. When we hear people say, people don’t really choose menthol, they’ve been preyed upon so they don’t have a choice,” he told NPR. “This idea that Black preferences and wants need to be stigmatized and criminalized in a way that white ones are not. The idea that Black vices are going to be policed differently than white vices. There is something insulting about that. It’s denying the agency of Black people.”
To be clear, regardless of the extent to which tobacco companies’ past campaigns influenced Black smokers’ choices now, the marketing was extensive and real. “Tobacco control groups are saying that Black folks have been targeted by Big Tobacco to smoke menthol: true,” veteran harm reduction advocate Dr. Patt Denning told Filter. “But now the ‘Big FDA’ is going to punish who? Black folks.”
Yet tobacco control groups, including Black-led organizations, don’t believe that a menthol ban will negatively impact people of color. “The illicit market and the ensuing criminalization of the Black community is rhetoric that the tobacco industry has used for decades in a cynical attempt to block public health policy that will actually protect African Americans,” McGruder explained to Filter. “I’m concerned about the 45,000 Black people who die every year due to the legacy of racialized tobacco industry profiling.”
@aatclc worked on this 4 yrs. Those making arguments about “targeting” BIPOC communities are being disingenuous & may be taking industry $, like the ACLU (unfortunately). See https://t.co/fFyeUqKZqK
FDA menthol ban has zip to do w local cops. It will be federal law about SALES https://t.co/N5fsSQTyCv
— Ruth Malone RN PhD (@MaloneRuth) April 30, 2021
Ban proponents point to a FDA statement that claims the ban only targets manufacturers, distributors, wholesalers, importers and retailers of menthol cigarettes and flavored cigars. “The FDA cannot and will not enforce against individual consumer possession or use of menthol cigarettes or any tobacco product.”
Of course the FDA won’t enforce the ban. Local law enforcement agencies will, as they currently do now on retailers that sell untaxed cigarettes. But by passing a nationwide ban, the FDA would create the conditions for the growth, potentially massive, of an illicit menthol tobacco market.
Massachusetts is the test kitchen. Last year, legislators passed a ban on the sale of mentholated tobacco products to “limit youth uptake of nicotine products.” Within months, an underground market was operating. The products are imported from the neighboring states of Rhode Island and New Hampshire, where they’re still legal.
The Iron Law of Prohibition ensures that when a drug is banned, consumer safety is reduced. Banning menthol cigarettes “will not make them disappear, it won’t eliminate the desire for them,” said Adesuyi. “It will just make these products more dangerous to access and consume, while potentially arming law enforcement with another means to harass communities of color.”
Across the US, there are calls to end the role of the police in responding to mental health calls, traffic enforcement, drug use and homelessness. Enforcing a national menthol ban would push in the opposite direction, giving a green light for law enforcement to expand into policing the illicit tobacco market.
Because the millions who smoke menthols are disproportionately Black, the underground market will be concentrated to serve Black neighborhoods and employ locals.
With FDA-regulated tobacco companies banned from selling menthol products, the vacuum will be filled with new groups and individuals who are willing to risk breaking the law.
“When you ban something you create crime,” Richard Marianos, a retired ATF Special Agent and adjunct lecturer at Georgetown University, told Filter. “The illicit menthol market will be lucrative, it will have so many tentacles … because people don’t just stop smoking.”
In an environment where cigarettes are legal, illicit tobacco sales are already estimated to be between 8.5 percent and 21 percent of the US market. This range represents between 1.24 to 2.91 billion packs of cigarettes annually and between $2.95 billion and $6.92 billion in lost state and local tax revenues. New York state has the most inbound smuggling activity; in 2018, 53.2 percent of cigarettes consumed in New York were from an illicit source. And no wonder. A pack of menthols there costs around double what it does in Virginia. So smuggling cigarettes from low-tax states and selling them in high-tax states is enormously profitable.
Now, imagine what would happen to this already-lucrative market if menthols were banned. Technology has made it easy to mentholate tobacco. There are menthol CrushBall capsule filters (“Just squeeze ‘em for a burst of menthol”), Rizla Fresh Mint Flavour Cards and Zen menthol tubes. All are available on Amazon. You can watch a DIY “How to make menthols” video on YouTube. After a ban, a new generation of illicit “mentholpreneurs” will flourish, with a customer base in the millions.
You cannot have prohibition without police and punishment.
And because the millions of people who smoke menthol cigarettes are disproportionately Black, the underground market will be concentrated to serve Black neighborhoods and will likely employ locals. Law enforcement efforts will therefore be targeted disproportionately at those same communities—even more than is already the case.
In the United States, we know a lot about drug prohibition and who it harms. Make no mistake, the consequences of a menthol ban are eminently predictable. A decline in smoking is not one of them. Incarceration and violence, driven by the increased presence of armed law enforcement in communities of color, are two of them. You cannot have prohibition without police and punishment.
In the letter the ACLU sent to the FDA opposing a menthol ban, they concluded, “In the end, tobacco policy will no longer be the responsibility of regulators regulating, but of police policing. Our experience with alcohol, opioid and cannabis prohibition teaches us that this is a policy disaster waiting to happen with Black and other communities of color bearing the brunt.”
If racial justice is the goal, prohibition is never the way to get it.
The Influence Foundation, which operates Filter, has received both general support and restricted grants from the Foundation for a Smoke-Free World. The Influence Foundation previously received a restricted grant from DPA.