When President Joe Biden was elected amidst a push in his party to implement criminal justice reforms and legalize adult-use marijuana, few may have guessed he would lead a more prohibitionist administration than his predecessor. But Biden was a notorious drug warrior in the 1990s, demanding harsher punishments and more criminalization, and those instincts haven't waned with time.
The White House's lack of enthusiasm for marijuana legalization and criminal justice proposals from fellow Democrats is evident in how little they’ve done. And now, Biden’s zeal for prohibition is being supercharged and transferred to tobacco. The Food and Drug Administration announced a proposal to ban menthol cigarettes in April. Now, the administration says the agency will pursue a rule prohibiting more than 99 percent of the cigarettes currently sold in America.
How? The FDA’s proposed regulation would force cigarette makers to reduce nicotine to “minimally or non-addictive levels.” Some may contend this wouldn’t amount to prohibition because consumers could still buy and smoke cigarettes. But we should consider how the policy would be described if the federal government mandated the alcohol content in all spirits had to be reduced by 95 percent. Few would claim that it was a reasonable product reformulation, and many Americans would point to the alcohol prohibition of the 1920s.
The policy of removing almost all nicotine in cigarettes has never been tried anywhere in the world. But, to justify such an intervention, a wealth of research has been produced to try and anticipate its possible effects. An oft-cited 2018 study in The New England Journal of Medicine claims that nicotine reduction would result in five million fewer smokers in the first year.
The study relies on a process known as "expert elicitation," which attempts to quantify judgments about uncertain outcomes and report a consensus among relevant experts. A vital element of this process is that the experts must represent diverse views and have no conflicts of interest. As it so happens, all the experts asked to contribute to that study agree with the policy of reducing nicotine. While anyone tangentially related to the tobacco industry was viewed as having a conflict of interest, individuals and groups who wanted to ban cigarettes outright were not viewed as having conflicts of interest.
In making their estimate, it is unlikely those experts properly considered how banning cigarettes used daily by tens of millions of Americans would produce a thriving and easily accessible black market. While public health campaigners may downplay these concerns, the FDA concedes there is “no way to determine with certainty the prevalence and extent to which an illicit market will occur.” Furthermore, the FDA fundamentally undermined its own case for this policy. The agency claims reduced nicotine cigarettes are part of a strategy that will transition smokers to safer nicotine alternatives like e-cigarettes. But last week, the agency banned the sale of the most popular e-cigarette in America: Juul.
The FDA claims Juul’s application for authorization lacked sufficient evidence regarding the toxicological profile of its products to demonstrate that it would be appropriate for the protection of public health. These objections ring hollow considering the FDA authorized two very low nicotine cigarettes for sale, which are orders of magnitude more dangerous than Juul.
Juul is frequently demonized as the cause of the spike in youth vaping from 2017 to 2019. But the brand is no longer the number one choice of youth vapers, whose numbers have cratered in the past two years. While 89 percent of kids do not vape at all and 95 percent do not vape frequently, hundreds of thousands of adult smokers successfully kicked cigarettes thanks to Juul.
One country has pursued a complete prohibition of tobacco products: the Kingdom of Bhutan. The experiment was a disaster. A study in the International Journal of Drug Policy found that claims the ban would “induce tobacco consumption to cease or nearly cease has not occurred.” The ban sparked an enormous black market, and Bhutan abandoned its prohibition.
If the FDA moves ahead with what is essentially the prohibition of cigarettes in the US, the lengthy regulatory process will be followed by a huge amount of litigation. Instead of throwing FDA resources at an illiberal and unnecessary prohibition, the Biden administration should seek to educate and inform smokers of scientifically-proven safer ways to get nicotine without risking cancer, like e-cigarettes.
If he doesn’t change course by shifting to harm reduction efforts, President Biden will become the prohibition president who spurs the creation of a massive black market and all of the negative criminal justice consequences that come with it.
Guy Bentley is Director of Consumer Freedom Research at the Reason Foundation.