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Critics Cite 'Negative Impacts' on the Black Community as Backlash Mounts Against Biden's Support for Menthol Ban
While nixing menthol from the market may come as a surprise measure to some, the debate over whether to ban menthol products has been ongoing since it was excluded in the 2009 flavor ban.
The Biden administration is moving forward with a menthol ban citing the protection of public health as the reasoning for the measure, however, critics say the ban will negatively impact the black community, put more strain on police, and transform the issue from a public health concern into a policing problem.
The ban was originally proposed by the Food and Drug Administration (FDA) in 2022 with the intention of prohibiting menthol from being used as a flavoring component in cigarettes as well as prohibiting all flavors other than tobacco in cigars.
“‘The proposed rules would help prevent children from becoming the next generation of smokers and help adult smokers quit,’ said Health and Human Services Secretary Xavier Becerra. ‘Additionally, the proposed rules represent an important step to advance health equity by significantly reducing tobacco-related health disparities.’”
In April of 2022, the Food and Drug Administration posted the following video clip of FDA Commissioner Dr. Robert M. Califf announcing the ban on their 𝕏 account, (formally known as Twitter) along with the caption, “As he wraps up his opening statement, @DrCaliff_FDA makes an announcement about two proposed tobacco product standards – one prohibiting menthol as a characterizing flavor in cigarettes & another prohibiting characterizing flavors (other than tobacco) in cigars.”
The FDA was given authority to regulate tobacco products in 2009 when the Family Smoking Prevention and Tobacco Control Act (FSPTCA) was passed. This act placed more regulations on the tobacco industry, including banning the sale of tobacco products to minors who were defined as individuals under the age of 18 at the time (subsequently raised to the age of 21 by the Trump administration in 2019), banning cigarette vending machines, and an added requirement for warning labels on smokeless tobacco products, such as chewing tobacco. Menthol was excluded from the flavor ban during this time citing that more scientific evidence on the product was needed to justify removing it from the market.
According to the Centers for Disease Control and Prevention (CDC), menthol can enhance the addictive qualities of nicotine making it easier for people to get hooked to the habit. They also say that the tobacco industry specifically targets minority groups, including the black community, when advertising their menthol products and that deceptive marketing practices lead people to falsely believe menthol cigarettes are safer than other types of tobacco products. Menthol cigarettes are known to be less harsh than full-flavor products because of the “cooling” effect users experience. Those opposed to menthol say this effect entices young people, who then become addicted to the product.
A 2010 meta-analysis reviewed 10 studies that reported the outcomes of cessation efforts from both menthol and non-menthol users, finding that menthol users had a more difficult time kicking the habit, particularly those from racial minority populations and younger smokers. However, they did state that additional information was needed,“...particularly for studies including adequately powered and diverse samples of menthol and nonmenthol smokers, with reliable measurement of cigarette brands, socioeconomic status, and biomarkers of nicotine intake.”
While smoking rates have dramatically decreased in the last 50 years, as per the American Lung Association, the black community comprises about 16.8% of smokers, and of that, 77.4% primarily use menthol tobacco products, almost three times that of their white counterparts.
According to CDC data, between 1980 and 2018, 1.5 million black Americans started smoking menthol cigarettes with 157,000 dying due to their tobacco usage, comprising 40% of all menthol tobacco-related deaths.
But critics including Elliot T. Boyce, a New York Police Department Veteran, point out many flaws in the menthol ban that could lead to discriminatory impacts and strain on the relationship between black communities and law enforcement officers.
Boyce told the Washington Examiner, “[Menthol] becomes contraband, and now it becomes a cop issue…The black market demand will increase, and there's no guidelines for police.” He went on to say, “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.”
In July of 2023, Senator Tom Cotton slammed the Biden administration for cracking down on cigarette smokers while appearing to be lax on illicit drug use following Biden's commuting sentences for 31 nonviolent drug offenders in April.
Cotton told Fox News, “This administration would make criminals of law-abiding citizens while granting actual felons early release and encouraging illicit drug use,...No wonder Americans have lost faith in an administration that's less interested in public safety than targeting political enemies."
An account on 𝕏 with the name Black Police Experience made a post stating, “A federal menthol and flavor ban is BAD GOVERNMENT POLICY which will negatively affect our criminal justice system!” The post is accompanied by an infographic entitled, “The Influence of a Federal Menthol and Flavor Ban on the Criminal Justice System.”
The infographic goes on to explain how banning these types of products creates a black market, directly benefiting cartels and putting a strain on the entire criminal justice system from law enforcement to the correctional system. It also advises that action on this issue should be taken in the form of public education, provide reliable options for harm reduction, and emphasize the need for consulting law enforcement and the communities most affected by a given proposal before it becomes policy.
A conservative advocacy group, Building America's Future, also took a stance against the proposal. As reported by Fox News, the group says the ban would result in a massive loss of state revenue, costing the federal government $1.9 billion and state governments nearly $5 billion due to a loss in tax revenue generated by the sale of menthol tobacco products.
While nixing menthol from the market may come as a surprise measure to some, the debate over whether to ban menthol products has been ongoing since it was excluded in the 2009 flavor ban. A 2014 National Center for Biotechnology Information study tracked the public debate on the topic from 2008 to 2011 and, interestingly, the arguments for and against have not changed much in the last decade.
The study, entitled “The Debate on Regulating Menthol Cigarettes: Closing a Dangerous Loophole vs Freedom of Choice”, outlines that advocates for a menthol ban cited “...the tobacco industry’s history of targeting menthol cigarettes to vulnerable consumers, claiming that menthol brands ‘are products designed specifically to lure young blacks into a lifetime of tobacco use.’” Advocates for the ban also claimed menthol products impeded efforts to quit smoking and highlighted health disparities for the black population. At the time, those who opposed a ban on menthol said there was not enough evidence to prove menthol products were inherently more harmful than non-menthol products to justify a ban, claiming it would create a black market for the products, and stated the measure was one of government overreach.
The Biden administration has made a concerted effort to fight against cancer, committing to reducing the number of deaths from cancer by half by the year 2047. According to a September 13, 2023, White House briefing, these efforts include allocating an additional $240 million dollars for cancer prevention, detection, and treatment, more smoking cessation programs, and “New investments to reduce the impact of menthol and other flavored commercial tobacco products in communities that experience health disparities.”
The briefing went on to list cessation resources for specifically, “underserved communities, including American Indian, Alaska Native, and Black communities, to reduce cancer health disparities.” In addition, the National Cancer Institute (NCI) is listed as having launched resources online for menthol smokers that they say, “were created to address barriers to quitting in communities that experience disparities caused by menthol cigarette use, with a particular focus on Black communities.”
While the debate rages on with no end in sight, the White House Office of Management and Budget (OMB) is finalizing the rules of the menthol ban, which we could see published as early as mid-November.
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