Biden’s Menthol Ban Is Bad Policy
After more than a decade of reports, conferences, petitions, proposals and protests, President Joe Biden’s Food & Drug Administration (FDA) just announced its intention to pursue something that many tobacco-control advocates have urged for years: a ban on menthol cigarettes. Since roughly a third of all cigarettes purchased by America’s more than 35 million smokers have menthol as their characterizing flavor and most of the rest contain some of the minty substance, a total ban would rank among America’s most sweeping product bans since national alcohol prohibition began in 1920. As politics, the approach — supported by some civil-rights and nearly all prominent tobacco-control groups — might pay some dividends. Judged as health policy, however, it’s a weak gruel — at best.
At the end of the day, banning menthol cigarettes won’t reduce smoking in any meaningful way. But it will disproportionately affect some of America’s most vulnerable communities: namely, those who already suffer from over-policing. As the American Civil Liberties Union aptly points out, with this proposed ban, the Biden administration runs the risk of “prioritizing criminalization over public health and harm reduction.”
This is a warning we should heed. Scientific studies over the decades have made it perfectly clear that combustible cigarette smoking is highly addictive and has serious negative health consequences. And while some studies have shown that menthol cigarettes might be easier to start and harder to quit than their cousins with other flavoring mixes (nearly all cigarettes are flavored in some way), nobody claims that they create more intrinsic harm than other combustible cigarettes — or that menthol itself is as addictive as nicotine. Moreover, while menthol smokers exist in every demographic, they’re the choice for over 80 percent of African-American smokers and, when cigarettes were widely advertised, much of their marketing also targeted black people and communities.
Since menthol is popular, smoking probably would decline a little after a ban; the largest peer-reviewed meta-analysis done to date indicates this is likely. So, like anything that reduces smoking, this would improve health. But as one might expect from such a tweak, the effects are modest and can be overwhelmed by other factors. Removing menthol doesn’t break nicotine addiction, after all. Canada, which banned menthol in 2017 actually saw a small uptick (from 15.1 percent to 15.8 percent) in its 2018 smoking rate before a long-term decline resumed in 2019.
Still, if menthol bans achieved even small reductions in the smoking rate without adverse consequences, they might be a decent policy. But during a period of racial reckoning and growing distrust between black communities that have high densities of menthol smokers and law enforcement, there’s a risk that a ban could have severe negative consequences. While no currently proposed standard would criminalize mere possession of menthol cigarettes, drug laws — including those already governing the sale of illicit “loosey” cigarettes — have long blurred lines between dealer and user. In New York City, the fine for selling illicit cigarettes stands at $600 per carton and criminal charges are possible. For people in neighborhoods where fraught interactions with the police are already commonplace, these laws have certainly caused serious problems before. Exhibit A: Eric Garner, who was killed by a New York City police officer’s chokehold in 2014, was arrested on suspicion of selling “loosies” without proper tax stamps. Groups ranging from the National Organization of Black Law Enforcement Executives to Al Sharpton’s National Action Network and the ACLU have historically opposed menthol bans for just these reasons. What will happen remains to be seen: The illicit cigarette trade hasn’t boomed in places like Canada that have banned menthol, but the sheer size of the U.S. menthol market ($17 billion) and the country’s far higher rate of menthol usage may mean that such comparisons have limited usefulness. Many bans, furthermore, are just too new to evaluate: The EU’s is less than a year old.
Indeed, the risks a menthol ban poses may say something about most measures being pushed now to limit smoking: They may have reached the limit of effectiveness. The easiest and most effective methods of reducing smoking — education programs, a higher smoking age, marketing restrictions, public-place smoking bans, and workplace limitations on tobacco use — are national policies already. While the percentage of Americans who smoke has declined steeply over the past half century, the absolute number of smokers has barely budged. Given that every cigarette sold contains a stern warning about its dangers and the tobacco industry’s largest player says their product causes “death and disease,” any smoker who might have thought smoking was safe has long been disabused of that notion. Many adult smokers simply enjoy it and others simply cannot quit.
That’s why, if the Biden administration — which wants to decriminalize marijuana, and has promised to ease the War on Drugs — is to follow its own logic, rather than pushing unproven measures with significant risks like a menthol ban, it should instead ask people who can’t or won’t quit smoking to switch to a safer way to get the nicotine they crave.
And proven, safer alternatives exist. After exhaustive review, the FDA has authorized a number of smokeless tobacco products and “heat not burn” devices to make “modified risk” advertising claims that they are safer than cigarettes. Cochrane, the international network that produces sophisticated literature reviews on health topics, has likewise found that e-cigarettes are an effective stop-smoking aid. Even a handful of high-profile public-health figures (among them the former head of the American Cancer Society’s tobacco-control program) have asked their colleagues to begin reconsidering abstinence-only views on nicotine use and search for a “ceasefire.”
This is a good idea. A menthol ban might have some modest public-health benefits but not without the risk of imposing immense costs, too. And many other proposed tobacco-control measures run similar risks with equally small potential benefits. If the Biden administration wants to move in the right direction, then, it should take a careful look at its menthol-ban proposal and consider other measures that, instead, meet current smokers where they are.
