Last year, Massachusetts became the first state to ban all flavored tobacco products. The prohibition took effect in June and so far the results have been alarming.
Cigarette sales in Massachusetts fell 24 percent in August, but it appears customers sought out products across state lines. In neighboring New Hampshire and Rhode Island, cigarette sales skyrocketed 65 percent and 17 percent, respectively. Likewise, menthol sales in New Hampshire soared by 91 percent and Rhode Island’s rose 40 percent.
Prohibition is clearly failing to deliver as intended and the Massachusetts legislature is taking notice. A bill was introduced earlier this year that would have suspended the ban on menthol cigarette sales for 12 months. Named “An Act to Protect Communities of Color,” the bill focused on how the menthol ban impacts black residents specifically. Unfortunately, the Legislature’s Committee on Public Health effectively killed the bill by voting to move the proposal to a study. Thus, the flavored tobacco ban is left standing for the time being.
There is little difference in the overall smoking rate between blacks and whites, but 85 percent of black smokers use menthol products. Nonmenthol cigarettes are just as deadly as their flavored counterparts. So why are the products used by a majority of black smokers being targeted for prohibition when white smokers can continue to legally buy their cigarettes of choice?
A common answer from prohibition’s proponents is that menthol is more attractive to young people. But the data fails to substantiate that claim. Earlier this year, an analysis conducted by Reason Foundation found that states with a higher distribution of menthol cigarettes tend to actually have lower youth smoking rates.
Nationally, young African Americans are significantly less likely to smoke than other groups. The small minority of kids who smoke are just as likely to use a nonmenthol product as a menthol product. And youth smoking in Massachusetts has never been lower. The percentage of youth smoking daily is 0.4 percent and nationally, youth vaping is down a third compared to last year, according to a recent report from the Centers for Disease Control and Prevention.
To some, banning menthol cigarettes might seem like an easy way to reduce smoking rates, but the experiment did not yield success in Canada because smokers just went somewhere else to get the products. A study by the National Bureau of Economic Research on Canada’s menthol ban revealed: “…provincial menthol bans shifted smokers’ cigarette purchases away from grocery stores and gas stations to First Nations reserves (where the menthol bans do not bind).”
Massachusetts isn’t just losing much-needed tax revenue by forcing residents to buy flavored cigarettes across the state border but is also creating a new criminal market for menthols, which will overwhelmingly target black residents. This illicit market will also predictably result in more, and unnecessary, policing of minority communities, which is precisely why the American Civil Liberties Union opposed tobacco flavor prohibition at the federal level.
The calls for needed criminal justice and police reforms and the need to stop the over-policing of minority neighborhoods can ring hollow when combined with other policies that undercut those reforms and target minority communities, as the menthol ban does.
To avoid these points about overcriminalization, the supporters of the flavored tobacco ban claim possession and use isn’t a crime; only the sale of these products is a crime, they say. Drinking alcohol wasn’t illegal in the 1920s, the “manufacture, sale and transportation of intoxicating liquors” was, but the results were still catastrophic. Are we seriously supposed to believe that the disproportionate policing suffered by the black community due to the drug war and marijuana prohibition won’t be replicated in many ways by enforcement of menthol prohibition?
In the early 1900s, Massachusetts was the first state to ban recreational marijuana and it took the state 100 years to reverse its misguided policy. In this case, at least some state legislators are taking action to undo the menthol ban and refusing to wait until prohibition’s full impacts become too devastating to ignore.