Earlier this month, the House of Representatives voted to end the 83-year-old federal criminalization of marijuana. The House’s passage of the Marijuana Opportunity Reinvestment and Expungement Act marks an important milestone in moving toward ending the war on drugs. On the House floor, numerous members of Congress gave impassioned speeches urging their colleagues to vote for the bill in the name of racial justice, personal choice, public health, scientific research, and protecting youth from unregulated black markets.
Ironically, these are the exact arguments that Congress is ignoring in its pursuit of flavored tobacco prohibitions.
In February, the same body that decried the dangers of marijuana black markets this month supported what could be viewed as one of the most significant federal prohibitions of the last 50-years: House Resolution (HR) 2339, the Protecting American Lungs and Reversing the Youth Tobacco Epidemic Act of 2020, which would have banned all flavored tobacco products, including menthol cigarettes and flavored vaping products. This federal prohibition of flavored tobacco products would have been disastrous for public health and criminal justice.
On the public health side of the ledger, banning the most popular alternative to traditional cigarettes— flavored e-cigarettes—would likely reduce the number of people who are quitting smoking more dangerous traditional cigarettes and push many vapers back to cigarettes. E-cigarettes have been proved beyond any reasonable doubt to be safer than regular cigarettes and the latest evidence review suggests they are more effective at helping smokers quit than traditional nicotine replacement therapy.
The justifications politicians typically use for pushing these bans are that children are often lured into vaping because of the fruity and sweet flavors available. But data from the Centers for Disease Control and Prevention (CDC) show that the vast majority of children who try vaping say they do so out of curiosity and peer influence, much as with marijuana and alcohol, not because of flavors.
Contrary to the arguments of prohibitionists, adult vapers trying to quit smoking do not gravitate toward tobacco flavors. The vast majority of adults shifting to vaping in an effort to quit smoking choose sweet and fruit flavors. Thus, a consequence of flavored tobacco prohibition would likely be more smoking, and the few remaining e-cigarettes left on the market, mostly produced by tobacco companies, would come in tobacco flavors.
The ban on menthol cigarettes would also likely have dire consequences for criminal justice and over-policing in minority communities. Around 85 percent of black smokers use a menthol product. Prohibitionists claim menthol cigarettes should be banned because they are allegedly more attractive to children and are harder to quit. But, in truth, black adults are no more likely to smoke than whites, and black youth are significantly less likely to smoke than their white and Hispanic peers. Of the few children who smoke today, a majority use non-menthol cigarettes. So, why are members of Congress treating menthols as inherently more threatening than Marlboro Reds?
That black smokers would have their choice of tobacco products banned while the majority of white smokers continue to buy their preferred cigarettes is not only unfair but it’s a policy that lacks any compelling evidence. Banning menthol cigarettes disproportionately used by black smokers would necessarily mean disproportionate enforcement in policing this new prohibition in communities where the products are used—which is precisely why the American Civil Liberties Union and other civil rights organizations wrote to Congress voicing their concerns about H.R. 2339.
The groups that pushed hardest for the ban are at least consistent in their prohibitionist positions. In 2019, Dorian Fuhrman, one of the founders of Parents Against Vaping E-cigarettes, told Congress she also opposed the legalization of marijuana. Matthew Myers, the head of the Campaign for Tobacco Free-Kids, said in the same hearing, “I don’t believe most of the tobacco control folks out there believe in marijuana legalization.”
Congress is pursuing divergent and contradictory paths for nicotine and marijuana regulation. A majority of Republicans voted against the flavored tobacco ban, while most Democrats voted for the ban. The opposite was the case for the Marijuana Opportunity Reinvestment and Expungement Act, or the MORE Act, with most Democrats in the House voting to decriminalize marijuana and Republicans opposing it.
The House of Representatives just got it right on marijuana. On tobacco, the good news is that vaping dropped dramatically this year and youth smoking is at historic lows. Congress should work for safer, regulated markets for both nicotine and marijuana and avoid repeating the mistakes of the drug war with e-cigarettes, menthols, and other flavored tobacco products.
A version of this column first appeared in The Washington Examiner.