The Biden administration is facing criticism for announcing it needs more time to decide whether or not the Food and Drug Administration should outlaw menthol cigarettes. Skeptics argue that the administration should not have to take this long to determine that it should ban these products. They reason that the only entities who should be opposed to prohibiting menthol are the tobacco industry and its political backers. This view is myopic and fails to consider the negative unintended consequences that would come from such a ban.
The current rule in question does not apply to all cigarettes. It only applies to menthol ones — the kind that 85 percent of African American smokers use compared to just 34 percent of Caucuasian smokers. The federal government assuming a protective role over a specific racial group’s choices would amount to nothing more than top-down paternalism. It would reinforce stereotypes about their ability to make their own decisions, and that is in no one’s interest.
As Dianne Goldstein, the executive director of the Law Enforcement Action Partnership, put it, “It’s going to affect Black people and Black communities, while leaving others untouched—because for some reason the FDA thinks it’s acceptable to criminalize the choices of Black smokers in the name of their own health, while not extending the same ‘protection’ to other smokers.”
A menthol ban wouldn’t just exacerbate existing racial tensions. For over a year, minority rights and social justice advocates have warned that it could also increase inequities in the U.S. criminal justice system.
One of the most vocal members of this growing choir of opposition to the menthol ban has been the mother of Eric Garner, the 43-year-old African American man who was strangled to death by a police officer for allegedly selling loose cigarettes. She fears the ban will lead to “increased negative encounters with police and communities of color.”
Leading civil liberties and criminal justice reform organizations agree. The American Civil Liberties Union, for example, is concerned that the ban will “eventually foster an underground market that is sure to trigger criminal penalties which will disproportionately impact people of color and prioritize criminalization over public health and harm reduction.”
The negative consequences that would come from prioritizing criminalization over public health and harm reduction cannot be understated. It would lead to increased incarceration without stopping smoking in any notable way.
National security experts cautioned that a ban would empower international counterfeit rings and terrorist groups, and many law enforcement officers have predicted a ban would increase illicit sales and empower organized crime at the expense of the law-abiding, minority-owned small businesses that currently serve African American neighborhoods. While America’s often-underserved communities could benefit from the menthol cigarette tax revenue, that money will instead find its way into the hands of Hezbollah, Hamas, al Qaeda, and other terrorist organizations that profit from trafficking illegal cigarettes.
President Biden was right to ignore special interests and who wanted him to implement the ban. He has spoken out forcefully in favor of police and criminal justice reform, including ending incarceration for simple possession of illicit drugs. Flooding the inner cities with law enforcement officials seeking illegal menthol cigarettes would philosophically run in the opposite direction.
Instead of banning menthol cigarettes that would amount to micromanaging African American adults’ decisions, the administration should seek to increase smoking cessation programs for all smokers — not just menthol users. This represents the only effective and rational way to improve public health outcomes for the generations to come.
Ronald J. Stephens is Professor of African American Studies in the School of Interdisciplinary Studies at Purdue University
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