Criminal Justice

A Ban on Menthol Cigarettes Will Lead to More Confrontations Between Black People and Police

If public health scolds get their way, they will worsen the nation’s overcriminalization problem.


In 1924, Ohioan Lloyd "Spud" Hughes filed a patent application for his original technique of treating tobacco with menthol, creating a cigarette that was "cooling and soothing to irritated membranes" while being allegedly "absolutely non-injurious" and "pleasant to the taste." A century later, his invention having become immensely popular among African American smokers, the menthol cigarette is on the verge of being completely prohibited throughout the United States.

Advocacy groups are applying renewed pressure on the Biden administration to institute a nationwide ban. "The predatory marketing of menthol cigarettes and other flavored tobacco products must be stopped and we should all recognize this as a social justice issue, and one that disproportionately impacts youth and communities of color," reads a letter signed by groups including the NAACP and the African American Tobacco Control Leadership Council. The Food and Drug Administration (FDA) has until April 29 to respond to a lawsuit seeking a menthol ban.

It's not surprising that health groups want menthol cigarettes taken off the market. The more interesting subject is how the public health case against menthol collides with concerns about the policing of black communities, placing progressives in the uncomfortable position of endorsing a new form of drug prohibition. Is the cause of social justice truly served by outlawing a product precisely because of its popularity with African Americans?

The question has divided civil liberties and civil rights groups, with organizations including the American Civil Liberties Union, Law Enforcement Action Partnership, and Al Sharpton's National Action Network voicing opposition to menthol bans. "Any prohibition on menthol and flavored tobacco products promises continued over-criminalization and mass incarceration of people of color," they warned in a letter to Congress last year.

Ban advocates gloss over these concerns by emphasizing that the law would be enforced against sellers, not consumers, of menthol cigarettes. But big tobacco companies have too much on the line to defy the FDA; illicit markets for menthol cigarettes would most likely be run by people within the communities the ban is intended to protect.

If a ban is implemented, illicit market entrepreneurs would still have ready access to both cigarettes and menthol flavoring. No offense to "Spud" Hughes, but it doesn't take a genius to figure out how to combine the two. His patent application spelled out the process in just a few sentences. Unless the federal government attempts to turn menthol itself into a controlled substance, there will surely be many small-time sellers of menthol cigarettes meeting the demand of the millions of Americans who smoke them, including at least 77 percent of black smokers, but possibly as high as 88 percent (and around a quarter of white smokers).

As Jonathan Haggerty and Arthur Rizer, previously of the R Street Institute, noted in 2019, this presents a dilemma. "Enforcing a menthol ban—even just against dealers—would increase black communities' exposure to police. The alternative is to implement a ban and hope for lax enforcement, which amounts to little more than signaling."

This is no idle worry. Recall that Eric Garner's fatal encounter with police began with an arrest for the petty crime of selling loose cigarettes and ended with him being choked to death by a New York City cop. (Garner's mother, Gwendolyn Carr, became a vocal opponent of a proposal to ban menthol cigarettes in New York City.) And in Massachusetts, which banned menthol cigarettes in 2020, at least one illicit seller is facing prosecution amid a reportedly thriving black market. Executives at big tobacco companies might lament the loss in sales of menthol cigarettes, but the brunt of enforcement is more likely to be borne by people such as Garner, especially if a federal ban is backed by state and local measures.

Most professionals in the field of tobacco control have decided that the potential health benefits of banning menthol are nonetheless worth the risks of creating illicit markets. Research from the University of Michigan, along with other sources, suggests that menthol has played a significant role in the perpetuation of smoking. It's not far-fetched to conclude that a federal ban would have salutary health effects, but resorting to such an extreme measure does betray a lack of imagination. There are many options for reducing the harms of smoking that are much less coercive than prohibition.

The United States has yet to fully embrace tobacco harm reduction by actively promoting products such as electronic cigarettes and snus as safer alternatives to deadly cigarettes. The closest the federal government has come to such an approach was the "comprehensive plan" announced by then-commissioner of the FDA Scott Gottlieb. This two-pronged plan was supposed to redirect smokers to lower-risk products by making cigarettes less appealing (by banning menthol or reducing nicotine content) while encouraging smokers to switch to vaping. Unfortunately, Gottlieb himself was never up to the challenge of the latter, and by 2019 officials at all levels of government had turned to demonizing e-cigarettes.

In practice, sweet talk of nudging smokers toward safer alternatives has consistently turned out to be all stick, no carrot.

This reflects a larger trend of illiberalism within the antismoking movement, which has come to view smokers less as equals with rights to be respected than as deviants or addicts whose behavior must be controlled to win the war against Big Tobacco. This domineering attitude extends to the press, too. While coverage of the proposed menthol ban sometimes addresses its potential unintended consequences, the intended consequence of forbidding menthol smokers from buying the products they prefer is virtually never questioned. As recently noted by Marc Gunther, a journalist who covers the influence of philanthropic groups, "the voices of smokers are noticeably absent from this debate."

Take, for example, a recent poll by the Truth Initiative, an antismoking group that advocates for a menthol ban. Their research found that although a majority of nonsmokers support banning menthol, only 28.5 percent of current menthol smokers endorse the measure. Rather than taking the hint that the vast majority of menthol smokers prefer to be left alone, the group dismissed this rejection as "revealing an opportunity to further increase support among those who would be most impacted by a ban."

Banning menthol is now pitched as a social justice issue, but if we take the stated preferences of menthol smokers seriously, the racial politics cut the other way. White smokers would remain free to purchase the unflavored cigarettes that most of them currently consume, while black smokers would be paternalistically forbidden from exercising their own desires and subjected to policing of illicit markets if they try to fulfill them.

"I'd be livid," ex-smoker Deron Snyder wrote for The Root in 2010, " [If I] discovered that my Salems were forbidden while those disgusting Marlboros were still on sale….Why would the government ban the cigarettes that I prefer, while the estimated 78 percent of non-Latino, white smokers who prefer non-mentholated cigarettes are allowed to keep on puffing?"

It's a valid question, albeit one that is unlikely to give pause to advocates within the contemporary antismoking movement. Their discourse portrays smokers, particularly black smokers, as passive victims of predatory tobacco companies lacking agency of their own. To give consideration to their liberties would require acknowledging that people smoke for many reasons, including pleasure, and that smokers deserve to be treated as more than just collateral damage in the war against Big Tobacco. These are truths that public health activists are loath to admit, but they are the starting point for crafting more humane policies toward smokers and other consumers of nicotine.

NEXT: Biden's Long-Overdue Recognition of the Armenian Genocide Could—but Probably Won't—Produce a Foreign Policy Rethink

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  1. You just can’t win on menthols. You’re racist either way.

    1. You beat me to it. Racist for taking them away, or racist for giving blacks extra unhealthy cigarettes.

      Which is the whole idea. We’re all automatically racist, so we have to do whatever the left says.

      Better to just get rid of the left.

      1. “Better to just get rid of the left.”

        Um, sure, let’s have a one-party state, because history teaches us that one-party states work SOOOO very well! One-party GOP already lusts after being the one-party GOD (Grand Old Dickstatorshit). I am QUITE sure, too, that Sexless Stranger-strangler will be among the fastest to volunteer to head up the Grand Old Dickstatorshit! Purely for the “pubic good”, to be sure!

        1. Nope, you fvckin idiot, the two parties would be Republican and Libertarian

          1. In my wettest dreams! I’d be tickled pink, but WAAAAAY too many voters are too stupid and self-righteous to EVER even THINK of voting libertarian! Almost everyone has a YUUUGE “punishment boner” by which they think that Government Almighty MUST punish the so-called “bad guys” who harm no one but themselves! I must use Government Almighty to PUNISH YOU because I am holy and you are a dirty hippie, an abortionist, a druggie, a gun owner, a racist, an illegal sub-humans smuggler, a tariff violator, you won’t bake my cake, and on an on and on…

            ***IF*** we stopped being self-righteous assholes and gave UP our stupid “punishment boners” we could have a MUCH smaller Government Almighty, and vastly more freedom!

            But I am NOT holding my breath! I suggest that others shouldn’t hold their breath, either!

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            2. In the extremely unlikely event of leftists coming to their senses and ceasing to vote democrat (or just disappearing) I would be far more open to voting for Libertarian candidates. Until then we have to do everything we can to get them and keep them out of power, which means voting Republican

            3. Maybe only a few people ever really want to be free, or it is just way too much fun to snitch on neighbors.

        2. You’ve literally done nothing but cheer for a one party democratic state the last 4 years. That and say insane bullshit while thread shitting.

          1. Liar, liar, pants on fire!

            YOU, JesseBahnFuhrer, are the liar par excellence around here!

            Readers, beware! Do not be deceived by JesseAZ! JesseAZ does NOT believe that LIES are bad in ANY way! Only ACTIONS matter, ethically or morally! …
            “Words are words dumbfuck. Actions are where morals and ethics lie.”, says JesseAZ. When confronted with offers of hush money, illegal commands (from a commanding military officer), offers of murder for hire, libel, slander, lies in court, yelling “fire” in a crowded theater, inciting riots, fighting words, forged signatures, threatening to kill elected officials, false representations concerning products or services for sale… these are all “merely” cases of “using words”. Just like the Evil One (AKA “Father of Lies”), Jesse says lies are all A-OK and utterly harmless! So do NOT believe ANYTHING that you hear from JesseAZ!

            Also according to the same source, JesseAZ is TOTALLY on board with dictatorship (presumably so long as it is an “R” dictator that we are talking of).
            With reference to Trump, JesseAZ says…
            “He is not constitutionally bound on any actions he performed.”

            I say again, this is important…
            “He is not constitutionally bound on any actions he performed.”
            We need a BRILLIANTLY persuasive new movie from JesseAZ to “Wake Up, America!”, to flesh out the concept that “The Triumph of The Will of The Trump, Trumps All”! Including the USA Constitution. In fact, USA military personnel should start swearing allegiance to Trump, NOT to some stupid, moldering old piece of paper!
            Previous Powerful People have blazed a path for us to follow here, slackers!!!

            1. Autistic ramblings.

            2. “stupid, moldering old piece of paper”
              What they swear “to bear true faith and allegiance” to is the text, not the physical artifact which betokens it (which is made of parchment rather than paper).

        3. First, how do you get from a snarky comment about getting rid of the idiot naval-gazers who can’t decide which kind of racist they should be to eliminating the entire Party? Huge leap, but something tells me you were already mid-air waiting for the starting gun. Democrats can’t Democrat without picking sides on a conundrum they themselves have created? Probably a few more issues for them to virtue signal on than which smokes to ban. Right now whoever brought this shit up in public is likely almost as popular as the kid who brought up sister’s whoring around at Thanksgiving dinner. They will do what they’ve always done when a major constituency is threatened… change the subject, blame whitey and punt.

          Second, let’s not pretend that bosses of every political party that has existed anywhere any time in the universe doesn’t have wet dreams about being ‘all it’, and that would include the LP, though talking about in in such terms for a Party that has never broken single digits sounds silly. It’s their job, and the here and now with a Party looking to increase statehoods and pack SCOTUS to hold political power sounds a lot more like your Grand Old Dickstatorshit than the GOP has ever sounded.

          1. But Bidenpanzees never went apeshit, trying to replace democracy with mobocracy, like Trumpanzees did. An excellent article (the vast majority of it FACTS, not editorializing) that covers this entire issue is to be found here:

            Trump’s Big Lie and Hitler’s: Is this how America’s slide into totalitarianism begins?

        4. I’m sorry but communism has no place in a free country.

          1. In a “free country” one is allowed to vote for communists! I personally don’t advocate doing so, but that IS allowed in a free nation!

        5. The word God should not be used that way

      2. Well it sounds like “the left” is pretty split on this issue. Almost like “the left” isn’t a monolith.

    2. You know who else had an anti-smoking campaign?

  2. Somehow liberals don’t take the same view of this as they do Covid vaccinations: let the MAGA hat wearers skip the vaccine and die.

  3. the NAACP and the African American Tobacco Control Leadership Council

    How much government money do these groups get, and why? It’s long past time for us to demand the government stop funding groups that agitate for more government. It’s a clear conflict of interest, if not downright bribery, corruption, and self-dealing. In fact, we should demand government stop funding all the bullshit – it’s none of the government’s business.

    1. “It’s long past time for us to demand the government stop funding groups that agitate for more government.”

      Sure, but if they do that they’d also have to stop funding politicians.

      I actually remember a time when the news cycle had little to do with WTF are your politicians up to today and The Golden Fleece Award was a monthly bulletin introduced by Democratic Senator William Proxmire for this month’s most frivolous and wasteful spending. Now making it onto that list would be a badge of honor, not one of shame.

      1. We will need a committee to study the effects of funding groups to agitate for more government and a new position, Government Agitation Czar, to work towards the elimination of the agitation for more government.

        1. Government Agitation Czar, good one! It makes me want to GAC!

  4. Who has been puttin out their Kools on my floor?

    1. There’s an obscure movie line for you.

      1. Extra primo good, Mr. Coleman sir.

  5. ”Look, if ‘these people’ are not able to get a I.D to vote, or use the internet how can you expect them to know not to smoke these flavored cigs? ‘

    1. And who is selling them the cigarettes without checking to make sure theyre over 40 first?

  6. We’re getting into some real niche racist shit now.

    1. the ban on pineapple soda will be explosive

    2. To co-opt Margaret Thatcher, ‘the problem with social justice is that sooner or later, you run out of other things to call racist’.

      Someone is going to get their ass in a sling when the paternalistic elites and the race-bait industry forget to compare notes before going public.

    3. The Newport Riots of 2021 will be epic.

  7. “Executives at big tobacco companies might lament the loss in sales of menthol cigarettes”

    Why? Any loss of sale of menthol cigarettes will be more than made up for by increased sales of non-menthol cigarettes, either by people simply switching to non-menthols or the black market sellers buying cigarettes to mentholate

    Ironically, I doubt the black market entrepreneurs will stop at menthol, they’ll be infusing cigarettes with all kinds of flavors previously available only in vapes

    1. When they cut the amount of nicotine allowed in cigarettes expect a big upsurge in cigar and pipe tobacco sales.

    2. Black market cigarettes for the black market.

  8. I do wish we could support these positions on their own merits.

    The issue here is that, currently, all flavors are banned EXCEPT methanol. Which is a .. weird exception.

    I dont support a ban on principles of freedom, but admittedly if we were to get rid of the exception it would make a lot more sense as a matter of policy to ban methanol rather than reintroduce flavored cigarettes.

    Again, I would prefer the latter, but it is much easier to make the case for the former on public health grounds and empirical evidence rather than my dogmatic “but freedom” position.

    But if you can make the case … this doesn’t, it just makes a more dogmatic and many times more ridiculous “but racism” position.

    1. Sure.

      Better yet, legalize all drugs and all flavors for well-regulated sale and personal use. Maybe not all ages, since kids are less able to understand what nicotine addiction is and to consent. But consenting adults? Fuck off, nannies.

  9. 4 hamburgers a year, that’s where this winds up. Unless your biochip says your BMI is over 16, in which case you get none and your broccoli ration gets cut in half to 3 pounds a day.

    1. @Jerrykids,
      You are exactly right. There is no limiting principle to anything these nannies say.
      I always think of CS Lewis: “Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive.”

  10. good lord racist premise.

    1. Someone activate the cancel signal!

    2. SJW fail, kind of like Kelly Osborne’s:

  11. At lease those protesting a cancer causing right to smoke are wearing a mask for protection because the govt. tells the to..

  12. Now what to ban next….
    Malt liquor, 40s because it’s bad for the liver
    Fried chicken, because it’s bad for the heart
    Watermellon, because who the fuck cares what those blacks like, it’s not like they can think for themselves

    Now do Popeye’s And pink lemonade

  14. I love the social justice angle.

    If a product is marketed to African Americans and they buy too much of it it’s predatory. But if a product is not sufficiently marketed in African American communities and neighborhoods, African Americans are discriminated against.

    1. Everything Is So Terrible And Unfair! ™

      1. I was waiting for that! The day you fail to please will be a real EISTAU! day!

    2. Sometimes I wonder whether these SJWs have ever met a single black person.

  15. Even if there is lax enforcement on the illicit menthol cigarettes, how are they going to get tax stamps for the illicit menthols, lack of which will bring it’s own enforcement?

    1. Eric Garner would agree.

  16. I’m still pissed they took away candy cigs.

    1. I liked the chocolate ones.

      1. Are you trying to troll lovers of candy cigs? The chocolate ones sucked

        1. You just never got the kind with good chocolate

        2. What do you think long Tootsie Rolls de facto were? The Midgies were like chocolate cigarette butts.

    2. Mmmm! bubble-gum cigars!

  17. I used to smoke Newports and for a time lived in a predominantly black neighborhood. I got bummed for smokes all the time. The watering hole I would frequent had some tobacco rep visit and give away packs of non-mentholated cigarettes. Most of the group didn’t smoke so I’d get several free packs a week. They were not very good cigarettes. On a scale of 1 to Marlboro lights they were maybe a 4. And they were not menthol. Anyhow, the neighbors wouldn’t want a free pack of those. Just a single Newport.

  18. Cigs probably kill more innocent people than cops could do in their entire lifetime. But if you want to smoke, then you should be able to do so without government intrusion.

    But things won’t be that simple in a post BLM world. If black people make more bad health decisions than white, then the resulting disparity in well being will be squarely blamed systemic racism – even though all hospitals and nurses all lean left.

  19. “Research from the University of Michigan, along with other sources, suggests that menthol has played a significant role in the perpetuation of smoking.”

    What research?

    From the link:
    “Using a well-established simulation model of smoking prevalence and health effects and data from the National Health Interview Survey (NHIS), we first reproduced the overall US adult smoking prevalence between 1980 and 2018 (pseudo-R2=0.98) and associated mortality. Then we re-ran the model, assuming that menthol cigarettes were not present in the market over the same period. Finally, we compared both scenarios to quantify the public health harm attributable to menthol over the 1980–2018 period.”

    This just says that they started with the assumptiom that menthol increased smoking and plugged that assumption into a model.

    Here’s a link to some better studies, but even those seem like kind of a leap.

    This seems like saying, “Well, we can’t ban alcohol, so let’s ban GOOD alcohol. If people have to drink crummy whiskey and beer some of them will drink less or stop “

    1. “This seems like saying, “Well, we can’t ban alcohol, so let’s ban GOOD alcohol. If people have to drink crummy whiskey and beer some of them will drink less or stop “”

      Winner Winner Chicken Dinner.

      1. “Get Ripple! The bright new drink with that ring-a-ding flavor! Ripple!”

        1. It’s got what plants need!

    2. Or…. let’s only be allowed old Dana us barreled Gus with super charged ammo that blow up in peoples faces??!?! Not a bad way to cut down on repeat offenders.

      1. Damascus !!

  20. So will the ban on guns, but Democrats will be SHOCKED with the results!

  21. As a cause of death, menthol pales in comparison to the salt used to to make junk food addictive. As hypertension and obesity arising from the structurally racist salt trade take a terrible and disproportionate toll on the black community, this epidemic must be curbed not just by prohibiting its use as a food additive, but by subjecting it control as a Schedule II substance of abuse , and banning its use in snow removal on interstate highways.

    1. Don’t we love small minds that can’t tackle big problems.

  22. by what possible construction of the constitution does the federal government believe it has the authority to even regulate tobacco use, much less the flavor of it?

    1. Do you know what construction means?

    2. You can thank congress for passing the 2009 smoking prevention and tobacco control act, which gave the FDA the authority to regulate all forms of tobacco and apparently anything related to it such as vapes. It was signed into law by Obama, an admitted non-menthol Marlboro smoker.

  23. I’m guessing that any menthol ban will not happen until after the 2024 election if at all because the dems do not want to lose the Black vote. There are a lot more who would be pissed off about the ban than you’d think, and a lack of turnout in cities like Detroit and Philly could tip those states back to red, and the dems could completely kiss Georgia goodbye, possibly Virginia too, and forget about ever winning NC.

    1. They don’t need turnout anymore.

  24. This is all very ironic when you consider that marijuana was banned in large part because of its appeal to Blacks, especially jazz musicians. I bet the menthol banners are all A-OK with legalized weed.

    1. True of cocaine, but for marijuana, the primary link was with Mexican immigrants. This article Time published two years ago is an excellent précis:

  25. Now that I don’t smoke menthols anymore, I’m fine with this.

    1. So you must be fine with more Black people getting killed by police?

      1. Two things leave a bad taste in my mouth: unflavored cigarettes and right-wing assholes cynically using minorities as props.

        1. Cynically using minorities as props should be left to the professionals on the left.

          Also, check your sarc meter, dumbass.

        2. Your slip showeth whilst you doth protest too much.

  26. If you’re going to ban menthols because they are unhealthy you should just ban all cigarettes for the same reason. It’s an antifreedom reason but at least it’s consistent.

    1. foolish consistency is the hobgoblin of a small mind

  27. STOP telling grown adults what they can and cannot put in their bodies . This is communism in your face! This effects everyone who smokes! I love my menthol cigarettes!

    1. Don’t worry, in the brave new tobacco-free world, you will still have the freedom to decide your gender and terminate your pregnancy whenever you choose.

    2. Authoritarian but not necessarily communist. Smoking is very common is places like China and Cuba and was in the USSR. Also alcohol.

      communists are generally tolerant of such vices. Keeps the population docile. Smoking is much less tolerated in non communist countries like Norway and Italy.

  28. Forget about menthol and ban nicotine.

    1. And thereby create the mother of all black markets…

  29. We used to roll our own with McCormicks dried mint. It smelled a lot like weed. Back when we could smoke in class ( crazy ‘60s state college, huh!! ) we got some funny looks.

    1. “Flavor it up with McCormick!”

  30. But the sheep bleat “the science”.

  31. Not sure why they like them, but black people certainly do love their menthols.
    Back in the day, the Army used to put a small pack of cigarettes in our C-Rations. If you got a pack of menthols you immediately looked for a black soldier to trade with.

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  33. Does our government really believe that every Black person in this country needs a nanny? Where does this stuff end?

    1. Yes, and it ends with everyone needing a nanny.

  34. Knowing that menthol and flavored cigarettes are popular among African Americans, what does a ban look like? Yes, more racism. It makes no sense. In these difficult times, what is the point? Yes, the pinhead regulators need to find something to do, but for heaven sakes, lay off minorities.

  35. Funny how we can talk about menthols as an issue that “disproportionately” affects blacks, but not crime. No, those statistics are racist. Not these ones though even though blacks and menthols are a stereotype as old as the hills.

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