Banning menthol cigarettes is not the right solution

It’s no small feat that the Food and Drug Administration is set to ban menthol cigarettes, as the Biden administration recently announced. After all, they account for more than a third of cigarette sales.

The agency says it is taking steps to reduce tobacco addiction and reduce deaths, and there is no doubt that the ban is likely to lead some smokers to quit the bad habit. The federal decision seems motivated by the best intentions.

But there’s an uncomfortable dynamic at work here, as menthol cigarettes are particularly popular in the black community. While only 30% of white smokers prefer menthols, 85% of black smokers do, according to FDA statistics.

In other words, cigarettes popular with black Americans will be criminalized, while those favored by white Americans will remain perfectly legal. (Smoking rates are about the same for both groups.) Is this a good idea?

Not according to some black leaders, including the Reverend Al Sharpton, who say the ban is more than discriminatory. They warn it would give the criminal justice system another reason to target poor and minority communities — and could expand policing and incarceration trends that have unduly affected the black community for generations.

The concern is hardly unfounded. It was the sale of bulk cigarettes, after all, that in 2014 led New York City officers to confront Eric Garner, resulting in the unarmed black man’s suffocation death at the hands of police.

American history has repeatedly shown that banning a popular product does not eliminate demand, often resulting in illegal markets that need to be controlled. As the American Civil Liberties Union has stated, “The (menthol) ban put in place by the Biden administration will ultimately foster an underground market that is sure to trigger criminal penalties that will disproportionately impact people of color and prioritize criminalization over public health and harm reduction.”

American drug and alcohol policy has long been characterized by paternalism, classism and, yes, racism. Marijuana, for example, was made illegal in part because it was seen as a popular drug among black and immigrant communities, and these populations then became targets of repression.

As the ACLU also noted, black Americans are still being arrested for marijuana-related offenses at four times the rate of white Americans, even though usage rates are similar. Lawmakers in many states, including New York, have cited these disparities as the reason for decriminalization or legalization.

It’s a little odd that the decision to ban menthol cigarettes comes just as communities in New York and elsewhere are welcoming marijuana sales. And it would be bitterly ironic if this new ban led to a new wave of arrests just as the impact of marijuana bans is waning.

Yes, reducing smoking is a good political goal. Governments have many tools to solve the problem. But outright banning of popular products is rarely a good idea, given the unintended consequences that usually ensue. The Biden administration should rethink the menthol ban.

About Margaret Shaw

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