Commentary: Will new federal cigarette policy breed the next Eric Garner?

By Lieutenant Diane Goldstein (Ret.),
Special to the AFRO

The Biden-Harris Administration recently announced it would finalize a rule to criminalize menthol cigarettes by fall. If the agency follows through with this promise, it will have significant ramifications for the future of the policing profession.

The last decade has highlighted just how substantial the racial inequities in American law enforcement’s use of force truly are. In this short amount of time, the country watched a police officer murder George Floyd, an unarmed African American, for allegedly paying for cigarettes with a counterfeit dollar bill; witnessed Eric Garner get killed by a police chokehold for selling loose cigarettes; and saw Michael Brown get gunned down under suspicion of stealing a box of cigarillos. And yet, although barely three years have elapsed since the most recent of these episodes transpired, the Biden-Harris Administration is seeking to outright ban the cigarette type that over 80 percent of African-American smokers prefer (while providing no extra penalties to those preferred by White smokers). This flies in the face of common sense and justice.  

Responding to concerns from law enforcement officials and civil rights activists, the FDA has emphatically stated that it will only enforce the prohibition against menthol manufacturers and distributors, not individual smokers. However, the American Civil Liberties Union, the Drug Policy Alliance, and the National Association of Black Law Enforcement Officers still oppose this menthol ban because they know it will have a downstream impact on state and local laws and policies.

Policymakers initially told the Black community that stop-and-frisk and comparable policies wouldn’t unfairly target them. Now, the data and statistics tell a different story. Prohibition was also focused on sellers, not users. How did that turn out?  

Even if the Biden-Harris Administration sincerely means what it says — and there’s no reason anyone should believe otherwise — any subsequent administrations could still opt to target Black smokers with this ban should it go into effect. When examining the growing roster of 2024 presidential candidates that have pledged to harden the American criminal justice system rather than fix it, how dangerous this proposed FDA rule can grow becomes abundantly clear. 

The family and friends of George Floyd, Eric Garner, and Michael Brown will tell you that a law does not need racist intentions to have horrific effects. 

Banning menthol cigarettes is also not justifiable on public health grounds.

An April 2022 study published in the Journal of the National Cancer Institute by Vanderbilt University Medical Center found that menthol and non-menthol smokers have similar quit rates. The only difference is that non-menthol smokers face higher lung cancer risks. For those reasons, the research group concluded that “in the long-term if high percentages of menthol smokers switch to non-menthols, the ban could have the unintended consequence of a net increase rather than decrease in risk, at least for lung cancer.” 

Sylvia Miranda, executive director of the National Latino Officers Association, is right: prohibition doesn’t work.  

When Canada banned menthols, most smokers just shifted to non-menthol brands rather than quitting outright. When the European Union did the same, roughly 90 percent of cigarette consumers continued to smoke by switching products or engaging in cross-product trade. There is no reason to believe that a ban in the U.S. will fare any better.  

The most effective way to address smoking addiction problems is through a public health model, not a criminal model. The sustained prevention and education campaign against smoking in the last decades of the 20th century yielded tremendous decreases in smoking rates, all without criminalizing a single person. 

I speak from experience when I say law enforcement doesn’t want another case like Eric Garner’s. It wants the criminal justice system to work for the Black community, not against it. That will prove difficult if the federal government continues to pass counterproductive rules like this menthol ban, which will inevitably lead to more of the same harmful justice interventions. And that’s in no one’s interest.

Lieutenant Diane Goldstein (Ret.) is the executive director of Law Enforcement Action Partnership and a 21-year veteran of the Redondo Beach Police Department.


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