10 REASONS WHY THE FDA SHOULD NOT BAN MENTHOL CIGARETTES
"Such a ban will trigger criminal penalties, which will disproportionately impact people of color, as well as prioritize criminalization over public health and harm reduction."
This article written by: Guy Bentley, Director of Consumer Freedom
This article first published at: Reason Foundation (https://reason.org/commentary/10-reasons-the-fda-should-not-ban-menthol-cigarettes/)
As the Food and Drug Administration looks to start the process of banning the sale and manufacture of menthol cigarettes, the Biden administration is pursuing one of the most significant federal prohibitions in decades. Banning alcohol, drugs, and gambling were all disastrous policies that demonstrated prohibition is not the answer. And the current case for banning menthol cigarettes fails on both public health and broader societal grounds. Here are 10 of the reasons the proposed ban on menthol cigarettes is misguided.
1. The majority of youth smokers don’t use menthol cigarettes. Proponents of the ban say reducing youth smoking rates is one of the key reasons for banning menthol cigarettes. The supporters of prohibition claim the cooling sensation of menthol helps mask the harsh taste of tobacco, which, they say, makes it easier for kids to start smoking. But the data doesn’t back this claim up. According to an analysis by the Centers for Disease Control and Prevention (CDC), the popularity of menthol cigarettes among young people has declined substantially. From 2014 to 2018, the percentage of youth smokers using a menthol product fell from 54.5 percent to 46.1 percent. Furthermore, youth smoking rates have fallen to their lowest point in history. The CDC reported that just 4.6 percent of high school students reported being current cigarette users in 2020.
2. Black youth have lower rates of cigarette smoking than other groups. It is true that black smokers use menthol products at significantly higher rates than white smokers do. But this is often misconstrued and interpreted to mean the black youth smoking rate is higher than other ethnic groups. This assumption is incorrect. According to the CDC’s data for 2020, the rate of smoking among black, non-Hispanic high school students was 2.8 percent, compared to 5.3 percent of white, non-Hispanics smoking and 4.6 percent of Hispanic high school students smoking. The preferred cigarette products of those other groups with higher rates of smoking aren’t being targeted. Reducing youth smoking among all populations is a good goal. But given that youth smoking rates are lower among black youth, who are more likely to use menthol cigarettes, it’s unclear why the prohibition targets menthol, as opposed to non-menthol cigarettes preferred by other groups with higher youth smoking rates.
3. Black adults smoke at a similar rate to white adults but the preferred products of white smokers aren’t targeted by the ban. The latest CDC data shows that for the year 2019, smoking among white adults was statistically indistinguishable from that of black adults — with 15.5 and 14.9 percent respectively smoking. Given the lack of substantial disparities in smoking rates, advocates for menthol bans have not been able to explain why the preferred product for black adult smokers will be subject to prohibition while the preferred products of most white smokers will remain legal and available.
4. States with higher menthol consumption have lower youth smoking rates.
Menthol cigarettes allegedly more appealing to youth, easier to start using, and harder to quit. Because of these claims, one may assume that states with higher menthol cigarette consumption have higher rates of youth smoking. However, using National Survey on Drug Use and Health (NSDUH) data and menthol distribution figures, Reason Foundation examined whether there is a strong positive relationship between the distribution of menthol cigarettes and youth cigarette smoking. The analysis found: • States with more menthol cigarette consumption relative to all cigarettes have lower rates of child smoking. • States with higher cigarette distribution levels per capita of all types have higher rates of both adult and child smoking. • In general, the analyses show consistent nonpredictive relationships between relative menthol cigarette consumption rates and the use of any age group. • The only predictive relationship is between adult and child smoking rates, and since we do not expect children to cause their parents to smoke, we conclude states with higher rates of adult use cause higher rates of youth use.
5. Menthol prohibition will create illicit markets and more police interactions, especially in minority communities. For products with high demand, prohibition will entice black market suppliers and criminal networks to meet that demand, just as alcohol and drug prohibitions have historically demonstrated. The U.S. illicit tobacco market is already between 8.5 percent and 21 percent of total sales and represents between $2.95 billion and $6.92 billion in lost gross state and local tax revenues.
The Federal Trade Commission estimates that menthol cigarettes account for around one-third of all cigarette sales. With a customer base numbering in the millions and a highly profitable product, there’s little doubt criminal networks will seek to capitalize on prohibition. Because menthol is disproportionately the choice of black smokers, this illicit market will be concentrated in black neighborhoods—and that means police enforcement of the ban will also disproportionately be focused in those neighborhoods.
Twenty-seven civil rights and criminal justice reform organizations, including the American Civil Liberties Union, have signed a coalition letter opposing the menthol ban. They explain:
“Policies that amount to prohibition for adults will have serious racial justice implications. Such a ban will trigger criminal penalties, which will disproportionately impact people of color, as well as prioritize criminalization over public health and harm reduction. A ban will also lead to unconstitutional policing and other negative interactions with local law enforcement.
Aamra Ahmad, senior legislative counsel with the American Civil Liberties Union, said:
“At this pivotal moment, as the public demands an end to police violence erupting from minor offenses, we call on the Biden administration to rethink its approach and employ harm reduction strategies over a ban that will lead to criminalization.”
6. Menthol bans have a poor record of actually reducing smoking. In May 2020, the European Union banned the manufacture and sale of menthol cigarettes and the results so far are not encouraging. According to a post-ban survey published by the Foundation for a Smoke-Free World, just 8 percent of menthol smokers said they had quit—and this figure may be an overestimate thanks to social desirability bias, with many smokers feeling shame for their behavior and wanting to give the “correct” answer. The rate of people saying they had quit smoking was lower than the 12 percent who, in the pre-ban survey, said they would quit if the ban went into effect. Furthermore, we do not know how many of these former smokers will relapse.
Massachusetts is the only U.S. state to have implemented a ban on all flavored tobacco products, which went into effect in June 2020. From June to November 2020, Massachusetts’ cigarette excise tax stamp sales fell 24 percent. Unfortunately, sales in nearby Rhode Island and New Hampshire rose 18 and 29.7 percent, respectively, compared to the same period in 2019. Massachusetts lost $62 million in cigarette excise tax revenue while Rhode Island and New Hampshire gained $14 and $28.5 million, respectively. Total cigarette sales increased in New Hampshire by 46 percent, and menthol sales rose by 90 percent. Total cigarette sales in Rhode Island rose 20 percent, and menthol cigarette sales climbed by 29 percent. Combining the increased sales of non-flavored cigarette sales in Massachusetts, which amounts to 15 percent, with the rising cigarette sales in Rhode Island and New Hampshire, cigarette sales are up overall since the prohibition came into effect. Similarly, a study of menthol prohibition in seven Canadian provinces between 2016 and 2018 shows the vast majority (78.6 percent) of menthol smokers, switched to non-menthol cigarettes or continued to smoke menthol cigarettes. While 21.5 percent of menthol smokers reported quitting, the study doesn’t make clear whether menthol smokers were already trying to quit and or were more successful in doing so than non-menthol smokers were before the ban.
7. Menthol cigarettes are no more dangerous than non-menthol cigarettes.
Menthol cigarettes are no more safe or more dangerous than non-menthol cigarettes. In fact, a study published in the Journal of the National Cancer Institute found that menthol smokers’ risk of lung cancer was around 30 percent lower than non-menthol smokers. This lower risk of lung seen among menthol smokers is generally attributed to the fact that menthol smokers use fewer cigarettes a day than non-menthol smokers.
8. Menthol cigarettes are not more addictive than non-menthol cigarettes. Supporters of menthol prohibition frequently claim that menthol cigarettes are more addictive and regular cigarettes. But the evidence for these claims is incredibly weak. According to the author of the same study mentioned above, William Blot of the Vanderbilt-Ingram Cancer Center, “Our data indicated there is no evidence that menthol smokers have a harder time quitting smoking.”
If menthol cigarettes were more addictive, we should expect to see menthol smokers using more cigarettes per day than non-menthol smokers, but the reverse is true. We should also expect populations among which menthol disproportionately popular to have higher smoking rates but again this is not the case.
A review of the literature on how methylation affects initiation, dependency, and cessation by the American Council on Science and Health concluded:
“Overall, the evidence summarized in this section does not suggest that mentholated cigarettes are associated with any independent reduction in age of starting to smoke (“starter product for youth”), increase in cigarette consumption or dependency (“greater addiction potential”); there may in African Americans be some evidence for poorer results in cessation (“harder to quit” and “greater potential for relapse”).”
9. Menthol bans are unnecessary thanks to safer nicotine alternatives like e-cigarettes.
Prohibition is the most draconian policy option available to reduce menthol smoking. Given its successive failures and the risk of severe unintended consequences, all other options to reduce smoking should be given fair consideration. Thankfully, there is a new generation of safer nicotine products that have proved extremely successful in helping smokers quit. E-cigarettes, and particularly e-cigarettes in flavors such as menthol are now the most popular product used to quit smoking. The United Kingdom has managed to reduce its number of smokers substantially by encouraging them to switch to vaping which is dramatically safer smoking and has proved just as or more effective than traditional smoking cessation products. E-cigarette product applications are currently under review by the FDA. Instead of reaching for prohibition, the FDA could cut the smoking rate by approving these products for sale and providing smokers with accurate information about the benefits of switching to vaping.
10. Adults should be free to choose which cigarettes they smoke. The harmful health effects of smoking are widely known. From education in middle and high school to warning labels on packets to public health information campaigns, the public is continually informed about the dangers of smoking. Excise taxes are imposed on cigarettes to account for the potential health costs smokers might impose on others and are used to deter consumption. Indoor smoking bans are widespread and smokers often suffer from being stigmatized.
If some people continue to smoke in spite of all these factors, they should be free to do so. Adults in a free society should be allowed to make their own calculations of costs and benefits when it comes to what they put in their bodies, so long as they are not harming others. To ban one type of cigarette, preferred mostly by black smokers, while allowing an equally deadly cigarette that’s preferred by the majority of Americas to still be sold is illiberal and violates the fundamental spirit of fairness.