On June 29, the Washington, DC Council voted to ban the sale of flavored tobacco products—a designation that includes vapes as well as menthol cigarettes. The legislation now heads to the desk of DC Mayor Muriel Bowser, who has signaled her support for the ban and will likely sign it into law.
Council members debated at some length, mainly about the concern of potentially increasing the number of interactions between police officers and people of color. They ultimately passed the ban, however, with a vote of 8 to 5. (The bill exempts hookah bars.)
Tobacco harm reduction (THR) proponents had pushed hard for the decision go the other way. A day earlier, on June 28, a group of civil rights, civil liberties and free market organizations—notably the Drug Policy Alliance (DPA), the Law Enforcement Action Partnership (LEAP), Students for Sensible Drug Policy (SSDP) and the Competitive Enterprise Institute (CEI)—published a letter warning of the predictable outcomes of such a policy. They primarily worried about racial equity and health. A ban, the signatories argued, would trigger law enforcement action, disproportionately impacting people of color. And conflating all so-called tobacco products as equally as harmful, they go on, could also exacerbate health disparities in the city, when people in marginalized demographics smoke the most.
“Tobacco companies have been guilty of predatory marketing and practices in communities of color,” Queen Adesuyi, a policy manager at the DPA’s Office of National Affairs in DC, told Filter. “However, banning flavored tobacco products will not make these products or the desire for them disappear. Substance bans simply make using and acquiring said substance more dangerous and risky.”
Real-world examples demonstrate that this applies to nicotine. When Massachusetts banned flavored vaping products in November 2019, and then menthol cigarettes in June 2020, abstinence-only public health organizations like the Campaign for Tobacco-Free Kids (CTFK) heralded the move as “a historic step toward ending the tobacco industry’s long and deadly history of targeting kids.” But since then, no evidence has emerged to support the contention that this is a public health win, and the state has watched as consumers drive to nearby states like New Hampshire to obtain their flavored vaping products or resort to an underground market.
“The real winners of the DC flavor ban debacle are Virginia taxpayers,” Greg Conley, the president of the American Vaping Association (AVA), told Filter. “As we know, the vast majority of adult menthol smokers and users of other tobacco products will not quit, but instead engage in cross-border sales to acquire the products they want.”
A loss of tax revenue, of course, is not the sole problem. The consequences of criminalization, critics of flavor bans note, have already begun. Earlier in June, video emerged of police harassing a group of Black teenagers on the boardwalk in Ocean City, Maryland. An officer even tasered one of the teens, who was at the beach celebrating his high school graduation with friends and was allegedly breaking a local ordinance by vaping.
“We know that prohibition as a public health approach to substance use does not work.”
But some legislators and supporters of prohibition appeared to find solace in the addition of a last-minute change that does not—technically—give the police the power to enforce the ban in DC.
“Importantly, the bill will be enforced in ways that protect against any potential law enforcement abuse,” Matthew Myers, the president of CTFK, said in a press statement. “DC’s Department of Consumer and Regulatory Affairs—not the police—will enforce the new law, and enforcement will only be on retailers, not individual consumers. The Council adopted an amendment today to make this explicitly and abundantly clear.”
It’s a fair caveat in theory. But as retailers abide by the new laws, vapers or menthol cigarette smokers are not simply going to quit en masse. Some will likely turn to members of their own communities to obtain either their preferred cigarettes, or the flavored vaping products that enabled them to quit smoking. Under these conditions, consumers with the right contacts or technical skills could quickly become “retailers.” And who is going to regulate or punish that underground market of close-knit individuals?
Stoked by nonprofits like CTFK, the fear of a new generation becoming “dependent” on nicotine is what has led to these sorts of ineffective policies—flavor bans, proposed nicotine caps and exorbitant vape taxes—throughout North America. In San Francisco, which initially celebrated an early flavor ban that turned into a template for other municipalities, the law appears to have increased smoking among high schoolers. Nonetheless, states like Rhode Island and Connecticut are still considering these prohibition-centered strategies despite mounting data against them.
“Our opposition to the DC Council’s vote to ban all flavored tobacco is not because we are against addressing youth access to tobacco,” Adesuyi told Filter. “It is because we know that prohibition as a public health approach to substance use does not work.”
DPA previously provided a restricted grant to The Influence Foundation, which operates Filter, to support a Drug War Journalism Diversity Fellowship. AVA has also made donations to The Influence Foundation. LEAP was formerly the fiscal sponsor of The Influence Foundation. Filter’s Editorial Independence Policy applies.