Colorado’s proposed flavored tobacco ban would worsen public health and criminal justice inequities
Photo 19914635 © Piccia Neri |


Colorado’s proposed flavored tobacco ban would worsen public health and criminal justice inequities

A ban on flavored tobacco products would likely lead to the growth of illicit tobacco markets and more policing in minority communities.

Colorado has been a leader in trusting adults and unwinding outdated prohibitions. Colorado led the way in the legalization of marijuana and then legalized sports betting in 2019. Locally, Denver decriminalized the possession of magic mushrooms. But, when it comes to nicotine, Colorado may be headed in the opposite direction.

A bill in the Colorado state legislature would prohibit the sale of flavored tobacco products, including menthol cigarettes. Only one state has implemented such a ban. In June 2020, Massachusetts implemented its prohibition of flavored vaping and tobacco products and the results have been disastrous. Lawmakers hoped people would stop smoking and vaping, but, instead, people switched products and sought their favored flavors elsewhere. Sales of non-menthol cigarettes, which are equally as deadly, soared by 15.6 million packs a year in Massachusetts. In neighboring states, where flavored products were available, cigarette sales surged 22 percent in New Hampshire and 18 percent in Rhode Island. The New England region saw no reduction in cigarette sales, but Massachusetts lost $125 million in tax revenue for the fiscal year 2021 due to the flavor ban, according to the Tax Foundation.

Advocates claim banning menthol is about protecting young people, particularly African Americans. But according to the last set of data from the Centers for Disease Control and Prevention (CDC), in 2019 the smoking rate amongst Coloradan black high school-aged students was so low as to not be statistically significant. The latest federal data showed that, nationwide, just 1.9 percent of young people smoked at least once a month in 2021, which is significantly lower than the percentages for marijuana or alcohol use in that age group.

Prohibition can also have perverse consequences, as San Francisco experienced after its flavored tobacco ban in 2018. Yale University’s Abigail Friedman found, “San Francisco’s ban on flavored tobacco product sales was associated with increased smoking among minor high school students relative to other school districts.”

Rather than encouraging kids to stop vaping, the flavor ban drove teens to traditional cigarettes. “While neither smoking cigarettes nor vaping nicotine is safe per se, the bulk of current evidence indicates substantially greater harms from smoking, which is responsible for nearly one in five adult deaths annually. Even if it is well-intentioned, a law that increases youth smoking could pose a threat to public health,” said Friedman. 

These results are not surprising. CDC surveys of teenagers show that just 13.2 percent of young people who use e-cigarettes say they do so for the flavors. Driving kids away from flavored vaping products toward traditional cigarettes is a terrible trade-off that worsens public health. E-cigarettes are dramatically safer than combustible cigarettes and are more effective in helping smokers quit than nicotine replacement therapies. 

Additionally, since black adults and young people smoke at lower rates than non-Hispanic white adults and youth, it is hard to ascertain why menthol products are being banned while the non-flavored, but equally dangerous, tobacco products used by more Coloradans would not be subjected to the bill’s prohibition. 

Menthol cigarettes are overwhelmingly the choice of minority adult smokers. As a result, a ban on them will likely lead to the growth of illicit tobacco markets and more policing in minority communities. The American Civil Liberties Union and other civil rights groups warn, “Policies that amount to prohibition for adults will have serious racial justice implications. Such a ban will trigger criminal penalties, which will disproportionately impact people of color, as well as prioritize criminalization over public health and harm reduction. A ban will also lead to unconstitutional policing and other negative interactions with local law enforcement.” 

Instead of prohibition, Colorado should apply the harm reduction strategies and logic it has used for legal marijuana and sports gambling. In this case, keeping safer alternatives, like vaping products and nicotine pouches, on the adult market can be a long-term tool to help drive down smoking rates. Rather than creating new black markets and policing problems, driving sales to neighboring states, and losing tax revenues, Colorado should resist misguided calls to ban flavored tobacco products.