Recently, the Biden administration unexpectedly pulled back its support for a national ban on menthol cigarettes, kicking the can down the road for a final decision until 2024. The ban was initially motivated by a desire to reduce disparities and improve health outcomes in historically underserved communities. But this strategy has recently come under intense criticism from civil rights groups such as the American Civil Liberties Union, the Drug Policy Alliance, and the National Association of Criminal Defense Lawyers, stating that it would disproportionately target people from historically marginalized and underserved communities, particularly in communities of color. [1]
These civil rights groups are correct.
If a national ban on menthol cigarettes were to go into effect, it would disparately impact people of color, specifically black Americans, because they represent the largest market share of menthol cigarette users. According to the American Lung Association, 77% of black American smokers use menthol cigarettes, which is three times the rate of white American smokers who weigh in at 23%. [2]
Historically, cigarette bans and prohibition strategies have been proven to fuel local and transnational organized crime-driven illicit economies to fill product voids with even more risky and unregulated black market, grey market and counterfeit products from other countries and states, while also depleting federal and state tax revenues. Essentially, these strategies divert tax revenues from federal and state government tax authorities and redistribute them into the hands of criminal organizations. [3]
A large portion of menthol cigarette users also come from communities that are already economically disadvantaged and underserved as a result of diminished tax bases. Public policy efforts that decrease revenues from tobacco taxes without a plan to make up for the lost revenue will create additional economic disparities in these communities. Additionally, the majority of businesses impacted by this ban would be small businesses that are owned and operated by ethnic minorities and people of color. Cigarette bans will ultimately provide market opportunities to illicit economies and result in increased criminal activity, violence, and corruption in the very communities the ban is intended to help.
Case studies
As evidence of what happens when menthol and other flavored cigarettes are banned, one only has to look to the states of Massachusetts and California. Researchers analyzed the state’s cigarette sales in comparison to neighboring states before and after menthol bans and concluded overall that tobacco consumption did not change much. Although some smokers quit, most smokers simply got their cigarette products across state and national borders or switched to nonmenthol cigarettes. These findings are consistent with trends observed by agencies charged with investigating tobacco offenses.
Mike Szrama, retired director at the New York State Department of Taxation and Finance, Criminal Investigation Division, and former assistant special agent in charge for Homeland Security Investigations said, “In my time at both agencies, bans on tobacco products were almost immediately followed by aggressive cross-border smuggling operations led by organized criminal groups to fill the void. The majority of our cases at NYS CID involved the movement of cigarettes from neighboring states to NY having no tax stamps or using false tax stamps. At HSI, the cases involved the smuggling of contraband and counterfeit cigarettes into the U.S. from China, Paraguay, Venezuela, and other locations. In both instances, proceeds from tobacco sales went right out of the state or federal tax coffers into the pockets of criminal organizations.”
In 2020, Massachusetts became the first state in the U.S. to implement a comprehensive prohibition on all flavored tobacco products, including menthol cigarettes. Cigarette consumption in the state declined overall by almost 5% after the ban. [4] However, a new research letter published by the JAMA International Medicine by Samuel Asare, principal scientist in tobacco control research at the American Cancer Society concluded that the menthol cigarette ban actually led to a new increase in smoking among black female adults, suggesting that prohibiting menthols, the cigarettes preferred overwhelmingly by black smokers, might actually be counterproductive to the original intent of reducing disparate health outcomes for this demographic group. [3]
Additionally, while tax revenues for Massachusetts declined, menthol purchases in neighboring states rose significantly. For example, while menthol cigarette sales fell by 24 % in Massachusetts following the ban, revenue for menthol cigarettes increased by 22 % in New Hampshire, 18 % in Rhode Island and 6 % in Vermont according to the Tax Foundation. [5] Menthol cigarette users simply drove across the border to purchase their cigarettes, in in doing so, deprived the state of Massachusetts an estimated $108 million in tax revenue the first year. [4]
Perhaps an even stronger example is the state of California who banned menthol and other flavored cigarettes about a year ago. According to a 2023 study by WSPM Group marketing research firm who collected 15,000 empty discarded cigarette packs in 10 California cities; people are still smoking menthol cigarettes, with 21 percent of the collected sample being either menthol or a menthol workaround and representing only a 3% drop in use overall.
Additionally, a staggering number of contraband and unregulated products are now being used as a result of the ban. [6] California has the second highest cigarette smuggling rate in the country, where an estimated 44% of cigarettes were not purchased in the state. California has also seen a 28% increase in foreign manufactured, internationally smuggled cigarettes as well as legitimate contraband “grey market” cigarettes designated for export in duty-free shops since the ban. [7]
In the first year of the ban, it was also determined that 5.6 million fewer cigarette packs were sold, which means revenues will drop over $300 million dollars. [6] Since California dedicates 96 percent of its cigarette tax revenues to social services, health care and Medicaid including the very popular First 5 program that services preschools, homeless family housing and pediatric health services in underserved communities; these programs, which are already struggling to survive will take a significant blow as an unintended consequence. [7]
Phil Walsky, retired deputy director of the FDA Office of Criminal Investigations summarized this best; “Having overseen national operations for the FDA OCI and working closely with Homeland Security Investigations and U.S. Customs, it became clear that when governments implement bans, the majority of consumers simply engage in state-to-state and international cross-border shopping to continue buying the same products or buy contraband cigarettes from illicit black, grey and counterfeit markets run by local and transnational criminal organizations.”
The law enforcement perspective
There are five primary reasons why passing national mandates or legislation to ban or prohibit the sale of menthol cigarettes is not only an undue burden on law enforcement but will also create unintended consequences in underserved communities which is contrary to the original intent of the ban.
- A national ban will create a larger and more dangerous market demand for internationally smuggled “black market,” unregulated “grey market” and counterfeit tobacco products that are known to support local and transnational organized crime as well as fund terrorism globally. Additionally, unregulated cigarettes have an even higher degree of impurities and dangerous chemicals associated with them and will likely cause even more significant health risks.
- A national ban will divert significant tax revenues away from historically marginalized communities into the pockets of transnational criminal organizations who will fill the demand for these products through illicit trade and further deplete already underfunded tax bases of underserved communities across the country. A previous Tax Foundation study concluded that a national ban on menthol cigarettes alone would result in a federal revenue decline of $1.9B in the first full year of prohibition. In the states, the declines in excise tax revenue would be $2.6B, sales tax revenue would be $892M, and MSA payments would be $1.2 B, for a total state revenue loss of $4.7B. [5]
- A national ban will divert resources from already underfunded and understaffed law enforcement agencies from reducing crime and violence to enforcing regulatory policies that are rarely prosecuted. Police agencies across the country have experienced recruitment, retention, and officer wellness challenges for the past decade. The profession has also made significant reform efforts, post-George Floyd to gradually reduce direct involvement in non-law enforcement public health challenges such homelessness, drug use disorder, and mental health crisis. Asking police organizations to now step in to regulate the use of menthol cigarettes is a step backwards in all the progress that has been made in getting the police less involved in public health issues and more focused on reducing crime.
- A national ban will increase the number of adversarial policing encounters in underserved communities instead of building bridges with positive encounters to build trust and legitimacy between the police and the communities they serve. Since black Americans use menthol cigarettes significantly more than other ethnic groups, this ban will lead to a disproportionate number of enforcement activities in these communities for what are at best regulatory offences. To illustrate this point, one only needs to recall the NYPD encounter of Eric Garner for street sales of “loosie” contraband cigarettes which still echoes within these communities and with the police who serve these communities alike.
- A national ban under the claim it will help reduce disparate health outcomes for black Americans, while simultaneously continuing to promote the legalization of marijuana appears hypocritical at best and dishonest at worst since heavy and prolonged use of cannabis is also associated with several adverse health consequences. The HHS Substance Abuse and Mental Health Services Administration (SAMSA) 2022 National Survey on Drug Use and Health, reported that black Americans use cannabis at the highest rate among major ethnic groups (23.5%), followed by whites (22.9.5%), Hispanic or Latino (20.3%) and Asian (11.2%) (SAMHSA, 2023). To date, 26 out of 50 states have already fully legalized the use of marijuana and only four states continue to make marijuana fully illegal. [8]
Conclusion
Due to the significant potential evidence of disparate outcomes in traditionally marginalized and underserved communities, primarily communities of color, President Biden should permanently end national efforts to ban menthol cigarettes, and instead, more aggressively pursue other valuable strategies that are proven to be effective to reduce harm and improve health outcomes without resorting to criminalizing or banning these products.
While it is understood the intent behind the legislation is to promote better health outcomes in these communities, the unintended consequences outlined above will undermine the effectiveness of the ban’s intent, while also creating an outright opportunity for exploitation by criminal organizations.
Bans of this kind routinely become unfunded mandates for federal and local law enforcement agencies, who will inherit the responsibility for enforcement, but without the necessary resources to address the increased responsibilities. As Charlie Giblin, Retired Special Agent in Charge of the New Jersey Treasury explained, “The tobacco industry is already highly regulated by both state and federal governments, but in actuality, few cases meet the threshold of federal or local prosecution in favor of civil remedies. A ban of this kind would empower criminal organizations, hamstring already overstretched police agencies, and add an unnecessary layer of complexity to the public safety mission.”
Lastly, since police agencies both federal and local will be responsible for enforcing the ban, the resulting increase in police enforcement activities will ultimately create more opportunities for negative interactions between police and members of underserved communities that result in an unnecessary strain on police and community relationships.
After over three years of strained relationships between the police and traditionally underserved communities as a result of COVID-19 and the sustained protests following the murder of George Floyd, among other similar incidents over the past decade, this is exactly the wrong time to pass prohibition-style policies that will make it more difficult for law enforcement agencies to effectively connect and rebuild partnerships, trust, and legitimacy in these very same communities.
Instead of introducing a national ban, the Biden administration could direct a more significant portion of state and federal tax revenues from menthol tobacco products toward promoting public awareness of the dangers of smoking, including youth intervention to deter kids from starting to smoke, and overall expand the use of programs that support smoking cessation.
References
1. Flaherty A. Biden administration pulls back from banning menthol cigarettes. ABC News. December 14, 2023.
2. American Lung Association. Adult Smoking Rates among Racial and Ethnic Populations. December 12, 2023.
3. Rich JJ. Massachusetts menthol ban increased smoking among black women. Reason. 2023.
4. Kuta S. Why banning menthol cigarettes locally doesn’t work: People kept smoking after a statewide restriction, and tax revenue fell dramatically. Chicago Booth Review. October 21, 2022.
5. Scacchi M. Massachusetts Menthol Ban Means More Revenue for NH. New Hampshire Journal. October 12, 2023.
6. Smith C. The FDA is Adopting California’s Failed Policies on Tobacco. Citizens Against Government Waste. 2023.
7. Hoffer A. Californians still smoking menthol after ban: Evidence from a discarded pack audit. Tax Policy Blog. October 26, 2023.
8. DISA. Interactive Map for Marijuana Legality in the United States. 2023. Accessed December 12, 2023.1. Flaherty A. Biden administration pulls back from banning menthol cigarettes. ABC News. December 14, 2023.
