A police captain’s warning against a hasty menthol ban
Recently, a delay in enacting a ban on menthol and flavored tobacco products was initiated by the White House, against the wishes of the Food and Drug Administration (FDA). Proponents of the ban say the delay is about politics. I, and other opponents, are asking for more time and research before such a ban is implemented.
In 2009, Congress gave the FDA the authority to regulate tobacco products through the Family Smoking Prevention and Tobacco Control
Act (FSPTCA). Banning menthol as a tobacco additive became a topic of debate, with the rationale that menthol is the Black community’s flavor of choice for tobacco products. The idea gained traction as a means of addressing the Black community’s smoking health disparity, though other cigarettes that are not flavored would remain available for purchase and consumption.
Prohibitive government measures have not worked in this country — we can just look at the passing of the 18th Amendment, which launched national prohibition on alcohol (Volstead Act).
The unintended consequences were the rise in organized crime, which was fed by an illegal market
in booze; increased smuggling; uneven enforcement; police corruption and a fall in tax revenues. This led to its being overturned in 1933 via the 21st Amendment.
Alcohol prohibition did not criminalize the consumption of or even the possession of alcohol. It did, however, create loopholes that allowed for exploitation of the law. Similarly, the FDA promises that those possessing or using menthol cigarettes will not be targeted for enforcement — only those who distribute or manufacture such products. While this may be the intent, there is nothing to stop an enterprising police
officer who sees a pack or carton of menthol cigarettes in the possession of an individual from asking questions in a search for other contraband or drugs, causing a potential disparate community contact, especially in the Black community.
In 2019, Massachusetts became the first state to ban flavored and menthol tobacco products. However, as a result of the ban, an illegal market in cigarettes has grown, challenging the ability of police to address their burgeoning enforcement needs. Besides having an illegal and unregulated market to deal with, which will
grow rapidly and vastly, a menthol ban will fuel the proceeds of cartels and organized crime, which will thrive by financing an illegal trade of goods, guns and human trafficking, adding to the burden and resources needed by local, state and federal law enforcement.
Finally, the argument that the tobacco industry is targeting youth and the Black community with marketing and ads falls flat. Regulatory measures have been in place since 1998 to address issues of targeting via the Master Settlement Agreement of 1998 (MSA) and the Family Smoking Prevention and
Tobacco Control Act (FSPTCA). They serve to prohibit tobacco company advertising, marketing, sales and promotions that target certain communities, including youth. According to the National Association of Attorneys General (NAAG), to protect vulnerable communities, the parameters already established by both the MSA and the FSPTCA should be rigorously enforced.
So why is there no proposal to ban all cigarettes? The FDA has the authority to regulate tobacco product additives such as menthol, flavors, and nicotine. However, the FDA does not have the authority to ban tobacco products altogether. Substantiating a ban on menthol by indicating that it will help the Black community’s health issues seems convenient, especially considering the potential harm that can occur due to the unintended consequences of a menthol ban. Not only can menthol cigarette smokers move to non-mentholated cigarettes, dangerous menthol additives and an unregulated market, but choice — which is a hallmark of American democracy — will be denied to those who prefer menthol cigarettes.
There are ways in which the disparate health impact of smoking in the Black community can be addressed, without the implementation of a menthol ban or increased burden on the law enforcement community. Health concerns about smoking should be backed by community education and sound public health policy. The FDA has indicated that it is committed to evidencebased actions to help smokers quit. The evidence reviewed should not be one-sided, and it should be thorough. Sound administrative policy should involve adequate feedback and research opportunities from all stakeholders, especially members of affected communities and law enforcement. Enforcing existing regulations and approving harm reduction options should be a priority for those who wish to exercise choice, as well as quit smoking. Finally, addressing social ills that lead to smoking, such as poverty, homelessness, food deserts and inadequate educational opportunities are more likely to help the health disparities in the Black community than a menthol ban ever could.