In the coming weeks, the U.S. Food and Drug Administration (FDA) is expected to publish a rule that would ban menthol cigarettes. This regulation would arrive amidst widespread fear that menthol prohibition will replicate many of the mistakes made in the government’s failed wars on drugs and alcohol. The FDA and policymakers in favor of banning menthol cigarettes have tried to stress that the ban should not lead to the agency itself breaking down doors or hassling menthol smokers on the street. However, prohibitions on drugs and alcohol have previously shown how bans incentivize counterproductive law enforcement actions and lead to many negative, unintended consequences—and the ban on menthols would present similarly significant bad outcomes.
Civil rights organizations and criminal justice reformers have been voicing concerns that racial and ethnic minorities will bear the brunt of any potential enforcement action. These fears are well warranted. While black and white smoking rates are similar, black smokers are far more likely to use menthol products. Roughly 85 percent of black smokers use menthol products.
Making menthol cigarettes illegal while leaving the cigarettes favored by white smokers legal is sadly reminiscent of the government’s disparate treatment of, and sentencing rules for, crack cocaine users compared to powder cocaine users. At one point, the distribution of five grams of crack cocaine, which was found more frequently in black communities, carried a minimum five-year federal prison sentence. In contrast, it took the distribution of 100 times that—500 grams of powder cocaine, which was favored in white communities—to trigger the same five-year mandatory sentence. Now, the FDA seems curiously poised to ban the specific cigarettes favored by black smokers while doing nothing about the cigarettes preferred by white smokers.
Last year, Aamra Ahmad, senior legislative counsel with the American Civil Liberties Union, said a ban on menthol cigarettes would disproportionately impact minority communities:
“Time and time again, we see encounters with police over minor offenses — for Daunte Wright it was expired tags, for George Floyd it was using a counterfeit bill, for Eric Garner it was selling loose cigarettes — result in a killing. There are serious concerns that the ban implemented by the Biden administration will eventually foster an underground market that is sure to trigger criminal penalties which will disproportionately impact people of color and prioritize criminalization over public health and harm reduction.”
Unfortunately, these critiques correctly note that if an illicit market for menthol cigarettes grows as the result of a federal ban, the black market and its impacts are likely to be concentrated in low-income, minority neighborhoods that already suffer from higher crime and policing. And the fact that the FDA itself would not be enforcing the ban on possession or use is a true but trivial point. At no time during alcohol prohibition were individual drinkers criminalized. But organized crime ran rampant, disputes over product and territory abounded, and individual small producers and sellers were prosecuted.
There are currently between 12 million and 18 million menthol smokers in America. If the FDA implements a ban on menthols, it is ludicrous to suggest that organized crime won’t seek to serve this market, especially as menthols remain legal in most of the world. Federal law enforcement agencies would be tasked with interdicting flows of illicit tobacco from abroad.
The U.S. already suffers from some crime spurred by today’s high tobacco taxes, even without prohibition. More than 50 percent of cigarettes sold in New York, for example, come from out of state due in part to the state’s high tax rates. In Massachusetts, which is the only state to have already banned flavored tobacco products, smugglers are being arrested with hundreds of thousands of dollars worth of contraband in their possessions.
There are already laws on the books that will impose severe penalties on those who sell menthols post-prohibition. If the FDA’s rule is enacted, anyone selling, importing, or distributing menthol cigarettes would be committing a crime and could land themselves in prison for a year for each offense. Thanks to the Federal Cigarette Contraband Trafficking Act (CCTA), smuggling menthol cigarettes across state lines could result in five years in prison. Every state also has laws on the books that criminalize the unlicensed sale and distribution of tobacco products. The possession of untaxed cigarettes is already illegal in 36 states and the District of Columbia.
Law enforcement officers frequently pursue minor infractions, such as selling loose cigarettes, as justification for intrusive searches that could lead to more significant busts, such as those for guns or drugs. These searches problematically increase the number of police interactions with the public, especially with minority men. As the ACLU and criminal justice reformers correctly note, Eric Garner was killed by New York City police in an incident that was initially sparked by law enforcement’s overreaction to his minor action of selling loose cigarettes.
“Giving police officers a reason to detain and engage black smokers to find out where they purchased their menthol cigarettes could lead to encounters that are likely to escalate to the unnecessary use of force and arrests,” writes Major Neill Franklin, a law enforcement veteran of the Maryland State Police and Baltimore Police Department.
America’s illicit tobacco market is already a multibillion-dollar industry, with profits from the illegal trade funneled into organized crime. A U.S. Department of State report revealed tobacco smuggling to be a ‘low-risk, high-reward’ source of funding for terrorist groups that also drains potential tax revenue from federal and state coffers.
The country has been making a lot of progress on some of these issues. Marijuana is being legalized in many states. Similarly, sports betting legalization is birthing a safer, more successful, and profitable industry in several states. Alcohol prohibition ended long ago and was replaced by regulation.
Why would we rightly recognize the need to end prohibition in these areas but still ban menthol cigarettes?
To believe that prohibition of menthol cigarettes would dramatically improve public health with zero negative consequences concerning disparate law enforcement is to believe in a world that is completely free from trade-offs.
If the FDA bans menthol cigarettes, it will spur the growth of a black market for those products. Law enforcement agencies can then be expected to claim the use and distribution of illegal menthol products as justification for increasing policing actions in minority communities. Thus, the proposed criminalization of menthol cigarettes should be expected to hurt communities of color, spur the growth of black markets, lead to more incarceration, and undermine criminal justice reforms made in recent years.