Why a Federal Ban on Menthols Is a Minefield for Biden

·7 min read
Photo Illustration by The Daily Beast/Getty
Photo Illustration by The Daily Beast/Getty

In the era of Black Lives Matter, does the Biden administration really want to take on prominent activists like Al Sharpton and Ben Crump—and make lives potentially harder for Black men, all because the government says it’s in their best interest?

There is a cost-benefit analysis to be had between good public health policy and the dynamics of criminal justice reform as Democrats weigh the FDA’s proposed ban on menthol cigarettes, which will disproportionately affect the Black community.

The question is whether the Biden administration can successfully perform this balancing act—and win over Black Democratic skeptics.

Nearly 85 percent of Black smokers use menthol (as opposed to just 29 percent of white smokers), and its alluring cooling effect attracts more than half of all kids who smoke. The FDA says a menthol ban would save lives—650,000 over the next forty years—with more than a third of them Black people.

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Yet the stiffest resistance is coming from Black leaders, like the Rev. Al Sharpton and civil rights lawyer Ben Crump—who represents the families of Eric Garner, Trayvon Martin, and George Floyd. They fear that more Black men could be victimized by a ban that is well-intentioned but will inevitably lead to the illegal selling of menthol and more prosecution of Black men for a petty offense—much in the the way Eric Garner lost his life in New York in a confrontation started by police over his allegedly selling loose cigarettes.

“It’s a straight-up political choice: Do we need one more battle, one more aggravation for the libertarian right wing? They’re the ones who will be rushing to the defense of letting people choose to smoke even if that means they will die,” said Arthur Caplan, a professor of bioethics at New York University’s School of Medicine.

Critics of the proposed ban, which the FDA announced last week, say it will backfire like the ill-fated war on drugs, putting small-time users behind bars and in police’s crosshairs, while the smuggling kingpins get rich. Prohibition is also invoked as proof that outlawing a product that’s in demand will only create a black market which does more damage—in no small part because it gives police yet another excuse to target Blacks for minor legal violations, as critics of overcriminalization have argued.

Such voices on the libertarian right and progressive left are skeptical of proponents’ claim that the menthol ban won’t be enforced on “the little guys”— noting the fact that all laws are ultimately enforced at the barrel of a law enforcement gun and with the threat of incarceration. And even a single scrape with law enforcement can potentially ruin a person’s chances for employment, student loans, or housing.

But are the public health benefits worth the risk?

The FDA has been trying for more than a decade to chip away at making smoking illegal. Menthol has been a priority since 2009, when it was the only cigarette flavor that wasn’t banned under the law that year that gave the FDA the power to regulate tobacco products. Despite the likely negative impact on Black communities, “You have to support the effort,” Caplan argued. “The toll of smoking is huge. The toll of menthol is huge.”

The burden falls heavily on Black communities because of the tobacco industry’s marketing. Billboard advertisements for Kool menthol cigarettes were once all over poor neighborhoods, until they were made illegal. “It’s not just a matter of taste, it’s marketing,” Caplan told The Daily Beast. “Black men were sold that it’s a cool, hip thing to do.” Newport cigarette ads featured waterfalls and healthy outdoor imagery “that hinted this is good for you, like sitting next to a running brook,” said Caplan. “The sellers have been duplicitous and remarkably indifferent to the harm they’re causing.”

He favors aggressive smoking cessation programs coupled with a recognition that an illegal black market is certain to emerge. “Everyone would have to agree that for a time, you do not aggressively prosecute the small fry sellers,” Caplan said, citing the recent crackdown on opioids as a model where the drugmaker was targeted. “Manufacturers and distributors, that’s where the emphasis should be. The guys on the street should get a break for a while.”

Resistance from the Congressional Black Caucus last year stalled the FDA’s proposed ban, and the pushback from civil rights leaders warning of “unintended consequences” has some members reluctant to take a stand. “Imagine some cop pulling a kid over saying, 'Where did you buy or get that Kool cigarette?’” Sharpton told Politico. “People are not going to stop smoking Newports and Kools because of a rule. They're going to go and get them from people that go to the street in the black market. Then what happens? That's all I'm asking.”

Carol Magruder, founder and co-chair of the African Americans for Tobacco Control Council, told The Daily Beast that she is “guardedly optimistic” that the FDA ban on menthol cigarettes and menthol tobacco in cigars will make it through the process of public comment that began this week, and later through public hearings that the FDA will hold next month on June 13 and 15. She cited the statement of support from NAACP President Derrick Johnson, which called the proposed ban “a huge win for equity, justice, and public health concerns,” and stressing that the burden of enforcement will be on the industry “and not the victims of predatory marketing practices.”

A longtime public health and anti-tobacco activist, Magruder said of the San Francisco-based group she founded, “We are from the community, and we are not trying to get anyone killed like Eric Garner (for selling loose cigarettes). I love Ben Crump. We need police reform, but at the same time we must take the deadliest products off the market.”

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Magruder noted that Rev. Sharpton is one of many who object to the menthol ban that has taken money from the tobacco companies, notably R. J. Reynolds and Altria (previously known as Philip Morris). “They shouldn’t have a seat at the table when these companies have killed a million people over the last twenty years.”

“I’ve shed many tears for Eric Garner and for Trayvon, and for the rest, but for the tobacco industry to latch onto those feelings we have is wrong.” Magruder added: “People tell you, ‘It’s my choice.’ It’s not your choice when they targeted our community, and they paid off our elected officials and they bought our media. They’ve been doing it for 20 years. Now we’re getting to the remedy for this horrific act, and that’s where Sharpton and Crump should be applying their leverage, on what benefits we can get.”

Magruder estimated a best-case scenario that would have the menthol ban implemented within two years. But, she said, that doesn’t mean the fight is over. The industry will mount an opposition campaign, and they can still sue, Magruder added. “They’re businessmen in suits, and they’re hiding behind racism.”

That’s a reality in the Black community which puts the onus on public health advocates to refute. There’s no turning away from the FDA’s conclusion that menthol kills. To leave these flavored cigarettes and cigars in place would be a disservice to the Black communities that have already lost too many lives. But that can’t be the end, or we’ll be right back at the beginning.

The tobacco industry made money destroying Black lives, now it’s time to pay it forward. A settlement along the lines of what was reached with the pharmaceutical industry to address the harm done by opioids. What goes around comes around. Call it karma.

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