Biden menthol cigarette ban slammed as ‘retributive’ by black officers and drug experts

President Joe Biden will soon roll out a national ban on menthol cigarettes and other flavored cigars, a move that is vehemently opposed by some black law enforcement officers and drug policy experts despite its billing as a public health initiative.

The ban, which has been in the works since the spring of 2021, was transmitted by the Food and Drug Administration to the White House Office of Management and Budget in October. The ban will be finalized over the next 30-90 days and could be published as early as Nov. 13.

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Healthcare advocates supporting Biden’s ban argue that menthol cigarettes disproportionately cause cancer-related deaths in the black community, with black people and Latinos consuming roughly 80% of all products.

However, multiple experts tell the Washington Examiner that despite the proclaimed health focus, the new regulations will have new unintended, discriminatory impacts on black people and other communities of color.

They specifically fault the ban for not including cessation options, including counseling, treatment, and other education programs, which will, in turn, push smokers to purchase illicit cigarettes on the black market, rather than quit cold turkey, once menthol is no longer legally available.

All the experts who spoke with the Washington Examiner explicitly condemned tobacco use, but they suggested that, especially given the education options and current stigmatization of smoking in modern America, it was wiser to give adults regulated tobacco options rather than lead them toward purchasing unregulated contraband likely sourced from China.

The White House declined to comment on critiques of the president’s ban.

Elliot Boyce, a 35-year veteran of the New York State Police and director and CEO of Diverse Perspectives, tells the Washington Examiner that the administration could have avoided, or at least minimized these negative effects, had they consulted law enforcement groups throughout the rulemaking process. Boyce confirmed that representatives for the National Association of Black Law Enforcement Officers, with which he is affiliated, the Law Enforcement Enterprise Portal, the National Association of Black Law Enforcement Officers, and the International Association of Chiefs of Police all were not consulted as FDA crafted the ban.

“[Menthol] becomes contraband, and now it becomes a cop issue,” Boyce said in an interview. “You ban it so you can’t buy it from the corner store. Massachusetts and California have already proven that the ban on menthol cigarettes has not stopped cigarette smoking, so now it’s going to be forcing individuals to go to the streets to buy cigarettes from their trunks to individuals’ cars.”

“The black market demand will increase, and there’s no guidelines for police. You’re taking a health issue, which the concern is health — health equity in the black community, and you’re basically putting it in the hands of police officers,” he continued. “You go from a health issue and make it a criminal issue and you’ve given police no guidelines. More encounters with the police are going to be dangerous. No guidelines for the police is going to lead them to try to figure out how to deal with this, and an increase in crime is guaranteed to go up, and the FDA has already admitted that. They know there’ll be some, as they put it, some increase in trafficking, but some is equally as dangerous as a little.”

Boyce and Art Way, a senior drug policy manager at the Drug Policy Alliance, both additionally argued that the statistics pushed by some healthcare advocates of the ban are skewed and do not account for the decrease in smoking among young people, both within and outside of the black community, in recent decades.

“As they talk about 48,000 people who have died as a result of cancer-related illnesses, they’re not saying that those 48,000 people are over the age of 65, as reported by the CDC. In that same report, the No. 1 cause of death for African American males between the ages of 1 and 25 is homicide. So if you put a popular commodity out there on the streets, it’s still going to be a violent encounter, but it also now shifts a health issue into a criminal issue,” Boyce claimed. “Education, treatment, and counseling has been reducing the number of individuals who are smoking. That number is at an all-time low. I believe you also find that this is the best avenue because young adults are not smoking cigarettes. This choice to do this is not going to be effective.”

“Is it worth the potential unintended consequences to go down this path? The justification is largely due to tobacco industry promotion and targeting and advertising that went on 50-60 years ago, the generations that found themselves potentially smoking due to that are essentially elderly,” Way added. “Black people simply are moving away from tobacco, like most folks are, so you have to ask the question, is it worth it? Is it worth the illicit market activity just as a result, and is it really about helping users, or is it more about a symbolic kind of retribution of policy against the industry?”

Way said that Biden’s ban is emblematic of a lack of downstream thinking in public policy that, while aimed at helping the black community, has indirectly hurt that community as a result.

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“We’ve been down this road as a community before, where you see these public health policies that are meant to benefit us, actually ended up putting us in a worse situation. I think the drug war and the incarceration of low-level nonviolent, petty users and dealers come to mind when you think of that, and how that creates second-class citizens that Michelle Alexander referenced in The New Jim Crow, and so we have to be real careful whenever we see a public health policy that will naturally have an enforcement element to it,” he explained. “We have to be on the lookout for some problems with police. You know, you’re essentially creating contraband, and even though the FDA isn’t looking to punish users criminally, you know, police could use this as a way to stop and interrogate people. Local jurisdictions could add their own criminal laws.”

“Why are we looking to make menthol cigarettes something that is worth money on the underground when barely I believe 2% of African American youth smoked Menthols,” Way concluded. “You know, we’re going in the right direction with tobacco. So why do this now? And the fact that they don’t have any type of cessation elements involved with the ban, there’s nothing being done in conjunction with the ban, to assist users to potentially quit — that to me proves that this is largely symbolic, retributive, and political. It’s well funded.”