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.