Menthol Cigarette Bans Will Fail Like Every Other Prohibition Scheme

The winners in every battle over restrictions are the people who do whatever they please without regard for government officials.

Menthol cigarettes are especially bad and should be banned, say a coalition of 23 state attorneys general in a recent letter to the Food and Drug Administration. The officials are eager to impose a new prohibition even as marijuana restrictions fall away across the country and Americans take tentative steps to undo decades of failed prohibition of other intoxicating drugs.

"The compelling and consistent scientific evidence shows that removing menthol cigarettes from the U.S. market will likely reduce youth smoking initiation, improve smoking cessation outcomes in adult smokers, advance health equity, and benefit public health," insists the letter co-sponsored by Illinois Attorney General Kwame Raoul with Idaho Attorney General Lawrence Wasden. It's also signed by their counterparts in Connecticut, Delaware, the District of Columbia, Hawaii, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nebraska, Nevada, New Mexico, New York, North Carolina, the Northern Mariana Islands, Oregon, Pennsylvania, Puerto Rico, Vermont, Washington, and Wisconsin.

As dubious as the claims of benefits from banning a particular flavor of tobacco may be, they don't venture quite so far into the land of magical thinking as another assertion in the letter. After several paragraphs insisting that they're up to the challenge, the attorneys general wave away the seemingly inevitable hurdles that have hobbled the enforcement of every other prohibition in human history.

"There is little reason to suggest that prohibiting menthol cigarettes will cause the emergence of an illicit market that will threaten the public health gains from prohibiting menthol cigarettes or that that state and federal authorities will be unable to prevent the emergence of such illicit activity," the letter adds.

If "illicit activity" is no concern when it comes to menthol cigarettes, why do reports suggest that Massachusetts, whose attorney general signed the letter, is on the receiving end of a flood of illegal products smuggled from elsewhere?

"With every month that passes, the state's ban on flavored tobacco becomes increasingly absurd," according to Jonathan Shaer, executive director of the New England Convenience Store and Energy Marketers Association. "All anyone needs to do is look at the excise tax stamp numbers from June through November to understand how ineffective and ridiculous this ban is. Rhode Island and New Hampshire have combined to sell 18.9 million more stamps than they did over the same period in 2019 while Massachusetts has sold 17.7 million fewer."

Admittedly, a national ban would prevent the smuggling of forbidden cigarettes from one state to another. But that would only open the floodgates to potentially riskier black-market cigarettes from outside the country.

"Counterfeit cigarettes are manufactured under low quality-control standards and are smuggled into the United States outside of legitimate commerce to avoid paying taxes attributed to legitimate tobacco manufacturers and sellers," warns the U.S. Bureau of Alcohol Tobacco, Firearms, and Explosives (ATF). "The trade of counterfeit tobacco products is a rapidly growing global problem."

That experience undoubtedly informs the opinion of Rich Marianos, a retired ATF assistant director.

"Menthol cigarettes are still the preference of many adults who choose to smoke," Marianos wrote this week in response to a proposed prohibition in Connecticut, whose attorney general signed the letter. "Banning that product will just push sales out of the stores and create a lucrative illicit market."

Marianos cites research by the Michigan-based Mackinac Institute to point out that "one in four packs of cigarettes in Connecticut are smuggled into the state" as it is. Underground dealers won't have to do anything but shake up their inventory to respond to a menthol ban.

Mackinac regularly surveys the black market in cigarettes. According to its latest research, more than half of all cigarettes sold in New York (whose attorney general signed the letter) are smuggled in from elsewhere. In Kwame Raoul's Illinois, 17.39 percent of all cigarettes are smuggled. Lawrence Wasden's Idaho has a different issue, with 27.41 percent of cigarettes purchased there exported to high-tax states for illegal resale.

"Simply prohibiting a popular product doesn't mean it will go away," Mackinac's Michael D. LaFaive, Todd Nesbit, and Ulrik Boesen concluded last summer. "Instead it will enrich lawbreakers and law-abiding retailers and wholesalers in states where menthol cigarettes remain legal."

Menthol bans don't seem to "reduce youth smoking initiation" either, which the state law officers claim as a goal. A report on a 2018 menthol cigarette ban by seven Canadian provinces finds that "provincial menthol bans significantly increased non-menthol cigarette smoking among youths, resulting in no overall net change in youth smoking rates."

Not surprisingly, given the history of black markets in general and tobacco in particular, the researchers "also document evidence of evasion: provincial menthol bans shifted smokers' cigarette purchases away from grocery stores and gas stations to First Nations reserves (where the menthol bans do not bind)."

None of this should be a shock given that marijuana prohibition is in retreat after years of failure. A decade ago, before legalization in many states for recreational use, 40 percent of Americans had tried the stuff despite laws against its use. Obviously, they obtained marijuana illegally.

Oregon appears to be leading the way for similar reform of restrictions on other intoxicants. Again, the public has grown familiar with mushrooms, LSD, heroin, and other drugs despite legal obstacles. As Jacob Sullum noted in last month's print issue of Reason, "Drugs declare victory in war in drugs."

The real victors aren't the products, though. The eventual winners in every battle over restrictions are the people who buy, sell, provide, and use whatever goods and services they please without regard for the hopes and fears of government officials.

The state attorneys general who signed the letter to the FDA couldn't stand in the way of people who wanted marijuana, they haven't effectively blocked access to other drugs the public likes, and they've had little luck preventing people from evading high tobacco taxes. A ban on menthol cigarettes offers no more likelihood of success than any other hair-brained prohibition scheme.