We often hear that drug prohibition is destined to fail. Specifically, that means that allowing no legal access to a substance people want to use—as opposed to tailoring regulations to limit youth access or certain forms of potentially harmful use—will fail.
In the US drug policy space, we are currently witnessing the decriminalization of drugs like heroin and cocaine and the ongoing legalization of marijuana. Despite many obstacles left to overcome, there is a gathering consensus that the criminalization of drug use is inherently wrong, that it produces negative public health outcomes like the overdose crisis, and that it fosters racial and other inequities.
But in one major area of drug policy, we see the opposite direction of travel.
We now see attempts across the country to ban all legal access to flavored nicotine and tobacco products. This blanket prohibition will fail in two ways. First, it will not achieve the advertised substantive gains for public health through reduced use. Second, it will simultaneously create new problems—through the harms of new forms of criminalization, through the inherent risks of new illicit markets, and through incentivizing people to use riskier products by switching, for example, from vapes to cigarettes.
But that seems not to trouble the architects of these policies. Because their purpose is essentially symbolic—to send a message to the public about youth prevention, regardless of the consequences for adults who use nicotine.
The unintended consequences of such symbolic policies are deeply troubling.
This has recently been illustrated where I live, in Denver. Councilor Amanda Sawyer and at-large Council Rep. Debbie Ortega have put forth a proposal to ban the sale of all flavored “tobacco products”—including menthol cigarettes, flavored oral products, hookah flavors and vape flavors.
This blanket ban would impose suspensions of up to a year on vendors who violate the flavor ban. The proposal doesn’t include criminal charges against users; but for reasons we’ll discuss, that shouldn’t negate our concerns. Other councilors have expressed worries about “jurisdictional shopping,” but have since decided to support the local ban. A hearing is now scheduled for October 6.
Given the councilors’ overwhelming membership of the Democratic party (despite their offices being officially non-partisan) one can’t help but wonder about the impact of Michael Bloomberg—the primary funder of both the Democrats and campaigns for flavor bans nationwide. It should be no surprise that Democratic strongholds such as California, Massachusetts, Minnesota, New York and now Colorado are taking the lead for Bloomberg on nicotine policy.
The unintended consequences of such symbolic policies—both those that have occurred and those that will likely follow—are deeply troubling. For example, in places like San Francisco where vaping products are banned, we see an increase in tobacco use among young people.
Bans also strengthen underground economies based on products “smuggled” from other jurisdictions or those manufactured illicitly. What does it mean for consumer safety when people can no longer buy regulated products from their local vape shops? The “EVALI” scare of 2019—lung injuries initially and wrongly attributed to nicotine vapes, but actually concerning vitamin E acetate within illicitly manufactured THC vaping products—aptly illustrated the dangers of strengthening the illicit and gray markets.
For many people of color, prohibitions and the illicit markets they encourage lead to familiar and damaging interactions with police.
Data, past experience and common sense also suggest that it is members of marginalized communities, experiencing poverty and in need of supplemental income, who will disproportionately fill the void of prohibition by engaging in the illicit activity required to continue the supply of banned products. The consequences of this could be deadly—and all for the sake of bans that fail to achieve their stated purposes.
For many people of color in marginalized communities, prohibitions and the illicit markets they encourage lead to familiar and damaging interactions with police. Eric Garner, Michael Brown, George Floyd and Alton Sterling were all killed by police in circumstances where tobacco policy, drug policy or broader illicit activity under current laws played a role. The video of the young Black man being tasered and assaulted by police in Ocean Park, Maryland this summer as they enforced a vaping ban reflects the fuel such policies provide for police abuse in communities of color.
Science has always been sidelined in the pursuit of drug prohibitions, and this is especially so regarding vaping. E-cigarettes first hit the US market around 15 years ago, and have greatly evolved in the intervening years. Study after study has shown these products to be first, vastly safer than combustible cigarettes, and second, viable smoking cessation tools that are more effective than options like NRT.
But as with other drugs, arguments about “the kids” have been leveraged to push for prohibition—”If we can stop our kids from smoking to begin with,” said Councilor Sawyer of her Denver proposal, “then hopefully they won’t turn into adult smokers.” And in the case of nicotine, a longstanding public health beef with the tobacco industry has also played into prohibitionists’ hands.
There has therefore been a concerted effort to put the vaping genie back in the bottle. But this phenomenon is even starker with the attempts to prohibit menthol cigarettes—which people have been using for far longer and which are lumped in with the general push against flavored products.
The menthol market is over a third of the US cigarette market. Menthols are disproportionately preferred by Black and other communities of color—the communities a ban would purportedly protect.
No one is minimizing the harms that menthols, like other combustible cigarettes, cause. And although Black smoking rates are similar to whites’ overall, it is ludicrous to think that the substantial demand for menthols will disappear simply because a local, state or even federal government decides to prevent legal access. As with prohibitions on vaping products, menthol bans will produce harms related to criminalization and illicit markets—but they’ll likely be targeted even more at marginalized communities of color, because these are the communities where menthol supply and demand are already concentrated.
A non-punitive approach to menthol cigarette-related health issues would involve a combination of public education and provision of resources—including vaping products—to aid quitting.
The menthol issue highlights the typically punitive nature of our drug policies. Nicotine and tobacco blanket bans are aimed at hurting the seller due to their promotional and advertising tactics—behavior which was rubber-stamped by our federal government. Yet despite the understandable knee-jerk reaction to hurt the seller, drug policy should always be focused on what’s best for people who use drugs. We’ve seen throughout the drug war how the harsh criminalization of sellers ramped up mass incarceration amid blurred distinctions between “seller” and “user,” while worsening drug-related risks and prohibition-related violence.
In contrast, a non-punitive approach to the problem of menthol cigarette-related health issues would involve a combination of public education and provision of resources—including vaping products—to aid quitting. I would suggest that the money and effort put forth by the likes of Bloomberg to hurt the tobacco and nicotine industries would be far better employed in efforts like these—tailored to the marginalized communities that suffer the most smoking-related harms.
Proponents of bans, especially where vaping is concerned, say they are out to save youth from a lifetime of poor health and nicotine addiction. It sounds a worthy objective. But prohibition produces all kinds of new problems, without solving the old ones.
Vaping began as a harm reduction tool, and that is what it principally remains. We must not pursue blanket bans in the name of curbing teen use, when these policies abandon adult smokers practicing harm reduction—and drive more teens to smoke.
We must not allow symbolic political gestures to disrupt the long-term progress we have seen in reducing smoking rates. There are 33 million fewer tobacco users in the US than there were 50 years ago, despite our population doubling in that time. And for millions of Americans who were unable to quit smoking, vapes proved to be the innovation that enabled them to do it.