The Biden administration has signaled that the finalization of its ban on menthol tobacco products is imminent, despite vigorous opposition from the law enforcement community, civil rights groups, and many Black and Latino activists.
Those who argue in favor of a menthol ban claim it will not have disparate policing impacts, placing their faith in the idea that the FDA will not enforce the post-ban possession of mentholated tobacco and nicotine products at the individual level, nor will there be state or local laws empowering police to arrest people for their possession.
But street-level policing has never been under the control of the FDA.
When New York City police officers killed Eric Garner for selling untaxed cigarettes on the street in 2015, it was a case of local police enforcing a state law. If the fallout from the menthol ban leads to illicit markets that violate the state and local laws - which is a certainty - then we can expect local police enforcement directed toward the people who operate these markets.
The facts that motivate public health officials to push for a menthol ban are the same ones that make it certain that a ban will create a nationwide illicit market, which will be left for the local police to handle.
Sales of mentholated tobacco and nicotine products amount to $30 billion a year. At the same time, communities of color have shown a strong and enduring preference for these highly demanded products, and a ban is not going to change this preference. Given the billion dollar market and smokers who are unlikely to quit cold turkey at the government’s behest, all indications are that it will yield a formidable illicit market.
When it does, the FDA will have no ability to prevent the local police enforcement efforts that result. If we have learned anything from the nation’s sprawling and indomitable illicit drug market, Black and Latino users will undoubtedly be more susceptible to police enforcement of this ban.
Touting the FDA’s good intentions for banning menthol tobacco distracts from this truth.
Menthol ban proponents have falsely stated that Americans in marginalized communities will not face police actions associated with a menthol ban, claiming the FDA will not enforce it on individuals. This is blatantly untrue as we have already seen states like Massachusetts, who passed a menthol ban that caused a booming illicit market, consider increasing enforcement on individual users because their ban was ineffective at curbing smoking rates of these products.
When the consequences are arrest and criminal charges, the benevolence of the FDA will provide little comfort to people worried about the risk of increased policing. In a sense, messaging about the FDA’s intentions is ancillary to the most important project, which is understanding the potential responses of the nation’s 18,000 local law enforcement agencies. Only working with local police to map the legitimate competing interests can help characterize, communicate, and reduce the harms of policing a menthol ban.
In pursuing the prohibition of a class of popular and highly addictive consumer products, the FDA is not only going against the present tide of a less prohibitionist approach to addiction, but going down a path that has led to harmful interactions for Black and Latino Americans. Given the demonstrated resilience of the demand for mentholated tobacco and nicotine products, and the immense nationwide market that stands to be erased overnight by an FDA ban, at least one outcome seems inevitable: people in already marginalized communities will experience increased interactions with local police.
When the inevitable illicit market appears, there is no reason to think local businesses and officials won’t take note and call for action. “Enter the police. Sadly, history has shown us how this often ends.”
Lieutenant Diane Goldstein (Ret.) is a 21-year veteran of the Redondo Beach Police Department in California. She is the executive director of the Law Enforcement Action Partnership, a group of police, prosecutors, judges and other criminal justice professionals who oppose the War on Drugs and advance sensible criminal justice policy solutions.
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