Youth tobacco use legislation would have unintended life-or-death consequences for black tobacco users

This week marks a critical, life-changing moment for the black community, specifically for black tobacco users. The Reversing the Youth Tobacco Epidemic Act (H.R. 2339) is set for a vote this week in the House of Representatives, and while this bill seemingly makes a lot of sense in curbing youth tobacco use, there are some glaring unintended dire consequences for communities of color with this legislation.

H.R. 2339 does many things with the goal to reduce youth tobacco use, like providing resources for a substantive public awareness campaign to educate about the dangers of tobacco use and reducing access to online purchases of flavored tobacco products. However, this legislation does not treat all tobacco products equally, carving out an exemption for one flavored product, premium cigars preferred by white smokers. A ban that makes an exception for one flavor—premium cigars—while banning menthol puts black lives at risk. Let me explain.

Considering the fact that 90 percent of black smokers use menthol products, menthol tobacco users would live in fear of new stop and frisk opportunities under this legislation, because menthol would now be considered an illegal flavor. A ban that targets menthol products but ignores other premium tobacco products unduly burdens the black community. This asymmetrical ban feels more like a targeted attack than a value-neutral health care policy decision. In effect, white adult smokers would see little difference in their lives after this ban while black smokers could face even more sweeping harassment from law enforcement if the hint of menthol smoke can justify a stop.

Make no mistake, banning all electronic and combustible tobacco products would save lives and while the premise of this legislation to address the uptick in youth tobacco use is positive, we cannot support an asymmetrical ban that disproportionately endangers the black community.

While the debate has not made this clear, we are unfortunately not currently considering a ban on all tobacco products. In fact, we are not even debating a uniform ban on vaping products or combustible cigarettes. Instead, the ban would focus solely on flavored tobacco products, including menthol. Considering how often teenagers develop smoking habits after starting with flavored products, I understand why the Energy and Commerce Committee has focused on this issue. However, including menthol in the flavored products ban will disproportionately imperil the black community putting them at increased risk of additional over-policing.

I do not take this position lightly, but as an elected official I must make the hard decisions—not the easy ones. I have a responsibility, to my constituents and the Constitution, to be the voice of the marginalized among us. To do so, I worked with the committee to find solutions to the criminal justice concerns of my community but was ultimately rebuffed. Nonetheless, I introduced an amendment promoting an education program to increase awareness about the dangers of tobacco use and the implications of this legislation. Constructive efforts like this will make considerable headway towards reducing tobacco use without laying the foundation for disparate enforcement of a ban.

While I would love to assume the best intentions of all involved parties and hope for the best in regard to enforcement, lived experience demands caution. In the world created by this asymmetrical ban where menthol tobacco products provide justification for police stops, I fear that we would have handed law enforcement another excuse to harass, detain and otherwise endanger marginalized communities. Despite the clear health benefits of this ban, I cannot in good conscious expose already vulnerable communities to this risk.

As a duly elected representative of Brooklyn, it would be an abdication of duty to disregard our painful history of over-policing or to ignore the very real potential of this history repeating itself. While no one would enjoy the political pressure this has exposed, I cannot ignore my nightmares of a jumped turnstile and a loosie turning into a far more serious matter of life and death potentially creating an additional health crisis. As Eric Garner’s mother knows all too well, and relayed in a letter to the New York delegation regarding this ban, in New York a single cigarette can become a death sentence.

If the committee decides to improve this bill by making it a categorical ban on tobacco products, I will throw my full support behind the effort. When I asked for a carve out for menthol products, similar to the carve out that was granted for the online sales of premium tobacco products like the Cuban cigars favored by Wall Street executives, I was soundly rebuffed. I would proudly support a categorical tobacco ban, but the committee so far has denied this opportunity. Nonetheless, and regardless of the political pressures, I will continue to do everything in my power to protect the people of the 9th District of New York and all black tobacco users across America.

Clarke represents New York’s 9th District and is vice chair of the Energy and Commerce Committee.