The FDA’s proposed ban on menthol cigarettes would lead to an increase in illegal, unlicensed distribution of menthol cigarettes in communities of color. This would trigger criminal laws in all 50 states, increasing the incidence of negative interactions with police and ultimately increasing incarceration rates.

Of black adults who choose to smoke, nearly 80% prefer menthol cigarettes. A ban on menthol cigarettes would drive these smokers to the illegal market. In turn, this would increase the incidence of negative interactions with police, such as arrests and searches, which can have a devastating impact on communities of color.

The sale and distribution of illicit cigarettes is a crime in all 50 states. In many states, this crime is classified as a felony, which can carry significant penalties, including jail time. A ban on menthol cigarettes would lead to an increase in the number of people arrested and convicted for these crimes, which would disproportionately impact Black and Hispanic smokers.

Prohibition is Bad Policy

The history of criminal law enforcement responses for past drug crimes such as crack cocaine, cannabis, opioids, and alcohol in the 1920s paints a clear picture that putting the onus of enforcement on police is the wrong course of action, especially when there are other, far more helpful interventions the federal government could be emphasizing.

A statewide ban on flavored tobacco products enacted in Massachusetts in 2020 has been such a failure - cigarette purchases subsequently declined in-state while increasing substantially in bordering states - that lawmakers there recently announced that they are considering a repeal of the ban on both menthol cigarettes and flavored tobacco. In addition, a city flavor ban in San Francisco is reported to actually have increased smoking rates among high-schoolers when compared to other school districts throughout the country. This is because when we take a product out of the hands of licensed, regulated shopkeepers who check IDs and ensure taxes are paid, and into the hands of people already selling illegal products, we have a lot less control over who is able to buy it.

We also greatly increase the profits of organized crime groups, who, as we saw with the mafia in the 1920s, are some of the greatest beneficiaries of drug prohibitions. Meanwhile, the people who will feel the brunt of law enforcement measures are the low-level sellers on the street, selling to folks in the neighborhood and probably not making a subsistence-level income on the product.

Should this policy go into effect, it will have devastating consequences, such as:

- Strengthening organized crime
- Potential sales to minors
- Multiplied prison terms under three-strikes and other repeat offender statutes
- Immediate revocation of parole and, thus, immediate return to prison
- Disenfranchisement in the states that remove the right to vote for felony convictions
- Deportation, even for persons with legally issued visas
- Loss of tax revenue

Better solutions are required to reduce harm in communities of color.

Advocating for Better Solutions

There are far better solutions for reducing menthol cigarette use than criminalizing these products and turning the whole issue over to the police.
Even the surgeon general in 2020 stated there is not enough evidence to claim a ban on menthol cigarettes is an effective way to encourage cessation. However, there are a number of evidence-based solutions that can be used to reduce menthol cigarette use without criminalizing communities of color. These solutions include:

- Investing in community-based health care solutions: This could include providing smoking cessation counseling and other services to people who smoke all cigarettes.
- Supporting consumer education, public awareness campaigns, and therapeutic interventions: This could help people understand the risks of smoking cigarettes and make informed decisions about their health.
- Addressing tobacco use, drug use, and other community issues with evidence-based solutions: This means using methods that have been shown to be effective in reducing tobacco use, such as harm reduction programs.

Help Us Make a Difference

We need your help to advocate in opposition to the proposed menthol cigarette ban. You can help by:

- Contacting the White House: Call the White House at 202-456-1111 or use the Contact Form at https://www.whitehouse.gov/contact/ and let them know you oppose the proposed menthol cigarette ban.

- Contacting your Senators and Representative via the U.S. Capitol Switchboard at 202-224-3121 and urging them to oppose the administration’s proposed menthol cigarette ban.

- Sharing this information with your friends and family and encouraging them to reach out to their officials: The more people who know about the issue, the more likely we are to make a difference.

Together, we can take action to prevent communities of color from being negatively impacted by the proposed ban on menthol cigarettes.

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