Biden's Menthol Ban will Perpetuate Injustice in Black Communities
The failed prohibitionist policies of the past are back. On April 28, the Biden Administration announced its intention to use U.S. Food and Drug Administration powers to ban menthol-flavored cigarettes and all flavored cigars, including premium cigars. Advocates of these proposals disingenuously claim the prohibition will “advance health equity,” while ignoring concerns about the expected criminal justice ramifications that inflated prohibition will have on historically marginalized communities.
Family members of George Floyd, Trayvon Martin, and Eric Garner have called on the Biden Administration to reconsider the proposed ban, predicting it will “unleash a Category 5 unintended consequences storm in our communities.” FDA has claimed they will not enforce the menthol or flavored cigar ban on individual users. This is absurd, as enforcement against individuals has never been the responsibility of FDA.
Should the proposal pass, all menthol cigarettes would be untaxed. Not only would this cost governments $6.6 billion in lost tax revenue, but possession of untaxed cigarettes is a serious criminal offense in all 50 states. FDA’s hollow attempt to alleviate valid concerns is insulting to the communities where the impact of this proposal will be most damaging. A menthol cigarette ban would provide police with the pretext to approach and question any individual suspected of smoking a menthol cigarette.
Statistically, these people who would be stopped by police would likely be non-white. Menthol cigarettes are more popular among African American communities and non-white neighborhoods have been historically overpoliced. The letter from Floyd, Martin, and Garner’s families accurately noted that “probable cause means a whole different level of law enforcement” in Black communities.
Tragically, we see far too often that encounters between Black Americans and police, even over minor offenses, can turn deadly. Garner was killed by police in New York in 2014 for selling loose cigarettes. NYPD slammed him into a window, performed an illegal chokehold, and left the 44-year-old father of six dying on the sidewalk for seven minutes.
In 1981, Chicago police officers killed 51-year-old Richard Ramey for smoking on the train. In 2020, Police in California brutally beat a 14-year-old teenager for underage possession of a Swisher tobacco cigarillo. Just last year, a group of teenagers in Maryland were tasered, kneed, and violently restrained by police for vaping on a public boardwalk. All these victims were Black.
Police organizations representing Black and Latino officers have expressed their opposition to a menthol ban in a letter to FDA, warning them “it is difficult to police the police.” Their concerns are shared by the families of George Floyd and Eric Garner, the ACLU, Reverend Al Sharpton, and Black Lives Matter organizers.
These groups are also concerned with the illicit market that will appear. Prohibiting popular products does not reduce demand; it simply produces more dangerous mechanisms for people to acquire them. Illicit markets bring devastating violence that affects entire communities. Menthol cigarette smuggling will quickly become a lucrative venture for international cartels and American gangs.
Our country has finally reached a moment in which communities are earnestly approaching criminal justice and police reform. Law enforcement is making inroads with underserved populations, cruel maximum sentencing laws are being repealed, and Congress is deciding whether to end the federal prohibition on marijuana. These pursuits are driven by the goal of a more equitable criminal justice system. The Biden Administration’s menthol prohibition is a huge step in the wrong direction.
Criminalizing products popular among Black Americans will force these communities to bear the brunt of the enforcement. If President Biden was serious about creating a more equitable future for disadvantaged populations, he would immediately order FDA to rescind the proposed rule. There are more compassionate ways to help people who smoke than turning them into criminals.
Let us not forget that this President, as a Senator in 1994, authored the Violent Crime Control and Law Enforcement Act that increased mass incarceration of Black and Brown Americans. The federal prohibition of menthol cigarettes and flavored cigars is another Biden-led decision that will devastate communities of color. To make this same mistake again will show this Administration doesn't value Black Lives. It is within the President’s power to end this disastrous proposal. He must do so.
Karl Abramson is a Consumer Issues Fellow at Americans for Tax Reform.
