What Could Go Wrong? Menthol Cigarette Ban up Next on the Biden Equity Agenda

(AP Photo/Dieu Nalio Chery)

President Joe Biden continues his administration’s goal of seeking equity for Blacks by banning menthol tobacco products.

In 2014, the American Journal of Health [Cheyne, Andrew, et. al, July 2014 American Public Health Association] noted that while the 2009 Family Smoking Prevention and Tobacco Control Act (signed by then-President Obama) brought greater regulation on tobacco products, it excluded a ban on mentholated products.

In 2009, the Family Smoking Prevention and Tobacco Control Act (FSPTCA)11 authorized the Food and Drug Administration (FDA) to regulate tobacco products.12,13 The law also established the Center for Tobacco Products, and Tobacco Products Scientific Advisory Committee (TPSAC). Though hailed by some commentators as an important tobacco control opportunity,14 the legislation controversially excluded menthol from an immediate ban on flavoring additives in cigarettes.15 As a concession for the exemption, TPSAC’s first order was to make a recommendation about menthol to the FDA on the basis of the available scientific evidence.

In March 2011, TPSAC concluded that the “removal of menthol cigarettes from the marketplace would benefit the public health in the United States.”16(p225) In July 2013, the FDA released a preliminary scientific evaluation on the public health effects of menthol, confirming menthol‘s harmful effects on smoking initiation and cessation, and called for public comment on the report.17 In September 2013, the FDA extended the public comment period for an additional 60 days,18 with any potential rulemaking to be announced after that time.

Biden’s follow-through appears to be an attempt to right that wrong.

According to the Daily Mail UK,

The Washington Post reported the anticipated move Wednesday, which would set off a process with the Food and Drug Administration that could take years, but would be applauded by antismoking and civil rights groups.

They have pressured the federal government to make the move because they say the tobacco industry has aggressively targeted black communities when pushing the mint flavored smokes.

The Post also reported that the Biden administration is also looking to include menthol and other flavored, mass-produced cigars as well, including the smaller cigars that are popular with young people.

Menthol cigarettes have long been considered the gateway cigarette for young people when they start smoking.

The Biden administration can unilaterally ban flavored cigarettes and cigars without the help of Congress.

The FDA must put out proposed rules and receive public comments.

There will likely be court challenges brought by the tobacco industry against the move as well.

The FDA must respond to a lawsuit by Thursday after the agency was sued in June by the African American Tobacco Control Leadership Council and Action on Smoking & Health for not responding to a citizen petition asking that menthol cigarettes be banned.

Biden has made racial equity part of his agenda, including on health outcomes.

It has been well-documented that tobacco, particularly menthol cigarettes, is heavily advertised to the Black community. From beautiful print ads in Afro-centric magazines like Ebony and Black Enterprise, to sponsorship of jazz concerts like the Newport and the Kool Jazz Festivals, the menthol cigarette has long been synonymous with Black culture and the epitome of “cool.”

Studies have also pointed out that menthol cigarettes are deliberately more addicting, and are harder to kick than the non-flavored varieties. Numbers also show that Blacks smoke them at a rate three times more than whites.

Activists have drawn parallels to it and Black genocide. They seem to miss this parallel when it comes to Black abortions — but, I digress….

It’s a debate that has been going on for at least two decades, and the main hold-up on politicians and others taking action is simple: commerce. Since menthol cigarettes are primarily consumed by Blacks, it affords Black merchants with a share of their market. Certain Black politicians also benefit from Big Tobacco contributions. According to Follow the Money, Rep. James Clyburn (D-SC) gets campaign cash from Swisher International and other Tobacco product manufacturers and distributors.

Typical of the Left, we have Biden attempting to bring racial justice by banning menthol, and instead messing with a cash cow that benefits Black entrepreneurs, while in turn, bringing more adverse law-enforcement oversight to Black communities.

It’s not surprising that health groups want menthol cigarettes taken off the market. The more interesting subject is how the public health case against menthol collides with concerns about the policing of black communities, placing progressives in the uncomfortable position of endorsing a new form of drug prohibition. Is the cause of social justice truly served by outlawing a product precisely because of its popularity with African Americans?

The question has divided civil liberties and civil rights groups, with organizations including the American Civil Liberties Union, Law Enforcement Action Partnership, and Al Sharpton’s National Action Network voicing opposition to menthol bans. “Any prohibition on menthol and flavored tobacco products promises continued over-criminalization and mass incarceration of people of color,” they warned in a letter to Congress last year.

Ban advocates gloss over these concerns by emphasizing that the law would be enforced against sellers, not consumers, of menthol cigarettes. But big tobacco companies have too much on the line to defy the FDA; illicit markets for menthol cigarettes would most likely be run by people within the communities the ban is intended to protect.

Journalist Lachlan Markay also notes that the Rev. Al Sharpton’s opposition may not be purely altruistic <shocker>. Like Clyburn, Sharpton and his concerns have financially benefited through contributions from Big Tobacco:

Journalist Jane Coaston also calls this out:

As have most of the policies that have come out of the first 100 days of this administration, this will not go well.