FDA ban on menthol cigarettes: Bad for criminal justice, health policy

The Food and Drug Administration (FDA) just announced it will pursue a ban on the sale of menthol cigarettes. Menthol cigarettes, which currently make up around a third of the cigarette market, are disproportionately used by Black Americans. While proponents of the ban claim that a menthol prohibition is a matter of racial justice, the reality is that such a ban will most likely contribute to overcriminalization in Black communities already struggling to determine the role that policing should play in their neighborhoods.

That is why the American Civil Liberties Union has taken a strong stance on the issue, stating in a letter to the FDA that “such a ban will trigger criminal penalties, which will disproportionately impact people of color, as well as prioritize criminalization over public health and harm reduction.”

Paired with a potential plan to gradually limit the amount of nicotine in cigarettes to minimally addictive or nonaddictive levels, a story The Wall Street Journal broke earlier this month, the federal government is going after tobacco use at a rate that has not been seen in decades.

Cutting nicotine in cigarettes to near zero is a not so subtle way of banning cigarettes while preserving the illusion of consumer choice. If the federal government cut the alcohol level in liquor to “minimal” or “nonintoxicating,” no one would consider the product liquor. Some might quit drinking or switch to other forms of alcohol, but it would be hopelessly naive to assume people wouldn’t seek out the real deal.

And the scientific evidence for implementing such a radical policy is weak.

The FDA acknowledges that some studies show smokers who switched to very low nicotine cigarettes reduced the number of cigarettes they smoked and reduced nicotine dependence — but other research shows no change in the number of cigarettes smoked. Even in studies showing a reduction in cigarette use, the decline is slight. What’s worse is that these studies are conducted under conditions so different from the real world as to be effectively meaningless, with participants given financial incentives and free cigarettes.

FDA-funded modeling claims that 5 million smokers would quit in the first year of President Biden’s proposed policy. But such estimates are derived from a simulation based on the subjective guestimates of eight experts. These experts also assume widespread availability of safer alternatives such as e-cigarettes, which is a dubious assumption since the FDA, the Centers for Disease Control and Prevention, and a host of states are doing everything they can to ban vaping. The FDA’s paper is a classic case of “policy-based evidence,” where a policy is proposed and evidence is created to support it.

While the FDA is authorized to reduce nicotine levels in combustible cigarettes under the Tobacco Control Act (TCA), it cannot ban cigarettes outright or reduce nicotine content to zero. The decision to pursue prohibition is reserved for Congress. It’s unclear at this time whether lowering nicotine to the proposed levels would be covered by the TCA. What is certain is that the policy will result in waves of litigation from the tobacco industry.

Then there is the proposed ban on menthol cigarettes. It is true most Black smokers use menthol cigarettes. What is also true is that Black and white adults smoke at similar rates, and Black youth smoke at lower rates than white youth. Black smokers also start later and smoke fewer cigarettes than white smokers. In fact, according to a study published last year by Reason Foundation, states with higher menthol consumption relative to all cigarettes have lower, not higher, rates of youth smoking. Youth smoking is thankfully at its lowest levels in years, and 54 percent of underage smokers use nonmenthol cigarettes.

With smoking rates at historic lows, why would the administration target the product mostly used Black smokers?

Doing so would undoubtedly contribute to overcriminalization in the Black communities that use menthol cigarettes at much higher rates.

Supporters of Biden’s proposal claim banning the sale and production of menthols — not their use — avoids the problems of disproportionate criminal outcomes in certain communities. But the Volstead Act that set off Prohibition in the 1920s never prohibited the consumption of alcohol — just its manufacture, distribution and sale. We know the consequences of that policy were disastrous.

This is why the American Civil Liberties Union, National Action Network, Law Enforcement Action Partnership and Drug Policy Alliance have all warned that a menthol ban would disproportionately impact people of color and trigger criminal penalties by prioritizing criminalization over harm reduction.

Rather than pursue costly prohibitions, the Biden administration should commit itself to following the evidence and incentivize smokers to quit — with better services and products, such as e-cigarettes, which have proved to be the most popular and often effective tool to quit smoking.

Guy Bentley is the director of consumer freedom research at Reason Foundation.