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Sprinkles from the Left

Commentators on the Left are generally in support of the ban, citing two FDA studies within the last decade that found they pose a greater health hazard than regular cigarettes, plus the fact that other cigarette flavors – apart from menthol – were banned in 2009.

  • They also cite statistics showing menthol products are disproportionately used in communities of color, attributing it to tobacco industry advertising dating back to the 1950s that specifically targeted Black Americans.

However: Many are concerned a ban would lead to more confrontations between people of color and police, resulting in more civilian deaths and worsening relations between the two groups.

“To discourage children from starting smoking and to help adults quit, [the FDA] should ban [menthol cigarettes]. It should also ban menthol and all other flavors except tobacco from e-cigarettes.

The harm that menthol adds to the already injurious practice of smoking has been recognized for many years. In a 2013 review of the science, the FDA concluded it is “likely that menthol cigarettes pose a public health risk above that seen with nonmenthol cigarettes.”

By seeming to cool the throat and soothe the irritation from burning tobacco, menthol makes smoking more palatable. This lures young people — close to half of all kids who smoke begin with menthol cigarettes — and helps to keep adults hooked. From 1980 to 2018, menthol encouraged an extra 10.1 million Americans to become smokers and was responsible for 378,000 extra premature deaths and a total of 3 million life-years lost, a recent study found.

Research has also revealed that menthol increases dependency. Menthol smokers are significantly more likely than other smokers to light up within five minutes of getting up in the morning, and to wake in the night and have a cigarette, studies have shown. Menthol smokers try to quit more often than other smokers do, but succeed less…

… Some people have argued that a menthol ban would discriminate against African American smokers because, thanks largely to decades of selective marketing by tobacco companies, they are more likely than other smokers to use menthol cigarettes. While menthols account for a little more than one-third of the total cigarette market, 85% of Black smokers smoke them. A ban, opponents say, might create a new point of friction between African Americans and law enforcement.

It’s also possible, however, that a menthol ban would persuade more African American smokers to quit. After menthol cigarettes were banned in much of Canada, daily menthol smokers began quitting at almost twice the rate of other smokers.

What’s certain is that allowing menthol cigarettes to remain on the market will continue to spur heart disease, respiratory illness, cancer and other health problems that disproportionately afflict Black Americans. It’s no wonder so many African American advocacy groups are calling for a menthol ban.”

Editorial Board, Bloomberg

“I do not smoke, nor do I encourage anyone else to do so, but passing a piece of legislation won’t instantly dissuade some from using their products of choice. An underground market will grow to meet this demand and law enforcement will be given license to stop any smokers they encounter. The foolishness of this proposal will put African American and Latinx citizens at risk of further police interference in their daily lives.

The strict prohibition of substances now commonly accepted such as alcohol, and now marijuana, failed miserably. The so-called War on Drugs was really a War on African American Communities, creating the most severe prison-industrial complex the world has ever seen. Entire families have been devastated by the loss created by misguided stop-and-frisk policies and unreasonable legal protections for officers.”

Rev. C.L. Stallworth; CT state representative for the 126th District (published in Connecticut Post)

“Black neighborhoods have a disproportionate number of tobacco retailers with pervasive tobacco marketing, and in particular, more marketing of menthol products. The industry’s own documents reveal its history of launching these advertising campaigns. Even now, I can vividly recall the numerous billboards for cigarettes in my neighborhood. I could recreate the packaging colors, logos or mascots for each of the brands I’d see constantly, and I have never smoked a cigarette.

The numbers tell this story, too. Among Black smokers 12-17 years old, 71.9% smoke menthol cigarettes. Menthol products are used disproportionately in communities of color — while nearly 85% of Black smokers and 47% of Hispanic smokers use menthol cigarettes, only 29% of white smokers do.”

Dr. Nia Heard-Garris, Arizona Republic

Sprinkles from the Right

Commentators on the Right are generally against the ban, citing two main points:

    1) Some compare it to Prohibition, arguing that a ban would give rise to black-market cigarettes with lower quality standards smuggled from elsewhere;

    2) Others note the disproportionate amount of minority menthol smokers, arguing a ban would lead to more confrontations between people of color and police, worsening relations between the two groups.

“It’s not surprising that health groups want menthol cigarettes taken off the market. The more interesting subject is how the public health case against menthol collides with concerns about the policing of black communities, placing progressives in the uncomfortable position of endorsing a new form of drug prohibition. Is the cause of social justice truly served by outlawing a product precisely because of its popularity with African Americans?

The question has divided civil liberties and civil rights groups, with organizations including the American Civil Liberties Union, Law Enforcement Action Partnership, and Al Sharpton’s National Action Network voicing opposition to menthol bans. “Any prohibition on menthol and flavored tobacco products promises continued over-criminalization and mass incarceration of people of color,” they warned in a letter to Congress last year.

Ban advocates gloss over these concerns by emphasizing that the law would be enforced against sellers, not consumers, of menthol cigarettes. But big tobacco companies have too much on the line to defy the FDA; illicit markets for menthol cigarettes would most likely be run by people within the communities the ban is intended to protect.

If a ban is implemented, illicit market entrepreneurs would still have ready access to both cigarettes and menthol flavoring. No offense to “Spud” Hughes, but it doesn’t take a genius to figure out how to combine the two. His patent application spelled out the process in just a few sentences. Unless the federal government attempts to turn menthol itself into a controlled substance, there will surely be many small-time sellers of menthol cigarettes meeting the demand of the millions of Americans who smoke them, including at least 77 percent of black smokers, but possibly as high as 88 percent (and around a quarter of white smokers).

As Jonathan Haggerty and Arthur Rizer, previously of the R Street Institute, noted in 2019, this presents a dilemma. “Enforcing a menthol ban—even just against dealers—would increase black communities’ exposure to police. The alternative is to implement a ban and hope for lax enforcement, which amounts to little more than signaling.”

This is no idle worry. Recall that Eric Garner’s fatal encounter with police began with an arrest for the petty crime of selling loose cigarettes and ended with him being choked to death by a New York City cop. (Garner’s mother, Gwendolyn Carr, became a vocal opponent of a proposal to ban menthol cigarettes in New York City.) And in Massachusetts, which banned menthol cigarettes in 2020, at least one illicit seller is facing prosecution amid a reportedly thriving black market. Executives at big tobacco companies might lament the loss in sales of menthol cigarettes, but the brunt of enforcement is more likely to be borne by people such as Garner, especially if a federal ban is backed by state and local measures.”

Jacob Grier, Reason

“In my 28-year career in law enforcement, I’ve seen first-hand the deadly realities of the criminal cigarette market. I know that cigarettes are a lucrative commodity traded by petty criminals, street gangs, and organized crime. Some criminals, especially here in Connecticut, profit from the tax disparity between states. They literally buy truckloads of cigarettes in low-tax markets such as Missouri where the tax is only 17 cents and smuggle them into high-tax markets like Connecticut, where excise and sales taxes combine to add $4.43 per pack. With a $4.16 difference, there’s a significant profit motive and a lot of cash is made. That cash, unfortunately, is used to buy guns and drugs, or to fund other criminal enterprises.”

Rich Marianos; retired Assistant Director of the Bureau of Alcohol, Tobacco, and Firearms and an adjunct lecturer at Georgetown University (published in the Connecticut Mirror)

“Smoking is a choice that a relatively small percentage of Americans make, fully aware of the health consequences. The idea of banning cigarettes altogether is a terrible one, especially as states fall all over themselves to legalize the smoking of marijuana. But targeting such a ban on just one racial group is an awful tobacco policy and an even worse policy on race.

It is not the job of the federal government to try to create conditions of perfect safety for all Americans, or even for black Americans. The crisis of the past year should make crystal clear the dangers of unintended consequences when the state seeks to protect us like a mother protects an infant. The bottom line is that Americans should have the freedom to choose to smoke — all Americans. That includes black Americans.”

David Marcus, The Federalist