WASHINGTON (March 25, 2020) – The U.S. House of Representatives passed a bill earlier this year banning flavored tobacco products, including menthol cigarettes and flavored e-cigarettes and vapes, following nine states and over 70 localities that restricted legal access to these products in the last year.

In a new policy short, R Street Fellow of Criminal Justice and Civil Liberties Jonathan Haggerty finds that with no safer, legal alternative to turn to, such a ban likely would not meaningfully reduce the number of smokers and may also lead to significant illicit market activity and criminal justice involvement. The evidence on illicit markets suggests the latter is more likely. Lawmakers should therefore exhibit the utmost caution when considering e-cigarette prohibition.

He points to economic research and history from the war on drugs that suggest banning an addictive product with high demand and few substitute goods will shift supply to the illicit market, and that efforts to enforce a ban on such a product will lead to violence.

He finds that multiple laws across states and the federal government criminalize illicit tobacco sales, meaning any attempt to reduce the criminal justice consequences of a ban must address these preexisting statutes.

He claims that given that black smokers disproportionately smoke menthol products, a ban could exacerbate racial tensions with law enforcement if illicit sales are concentrated in black communities.

He concludes that plenty of alternative policies exist, but “an outright ban of menthol cigarettes combined with a ban on flavored vape products, particularly menthol or mint flavors, would be the most harmful criminal justice policy, as it would most likely lead to an illicit market and criminal sanctions for a low-level crime.”