Regulation

The FDA's Menthol Cigarette Ban Is a 'Racial Justice' Issue, but Not in the Way Its Supporters Mean

The proposed rule, which targets the cigarettes that black smokers overwhelmingly prefer, will harm the community it is supposed to help.

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Supporters of the ban on menthol cigarettes that the Food and Drug Administration (FDA) proposed today say it is "a racial justice issue." They are right about that, but not in the way they mean.

What they mean is that 85 percent of black smokers prefer menthol cigarettes, compared to 30 percent of white smokers. "The number one killer of black folks is tobacco-related diseases," Phillip Gardiner, a tobacco researcher and activist, told Slate's Julia Craven after the FDA announced plans for the ban last year. "The main vector of that is menthol cigarettes and flavored cigars."

The FDA's proposed rule would ban both, which the agency says will "address health disparities experienced by communities of color." Action on Smoking and Health welcomed the FDA's ban, calling it "a major step forward in Saving Black Lives" and averring that "menthol advertising violates the right to health of Black Americans."

Although menthol and nonmenthol cigarettes pose similar hazards, the FDA says menthol makes smoking more appealing and harder to quit. As Guy Bentley, director of consumer freedom at Reason Foundation (which publishes this website), noted this week, the evidence on the latter point is mixed. But even if it were clear that menthol smokers are less likely to quit, that would not necessarily mean menthol cigarettes are inherently more "addictive." That debate tends to obscure the tastes, preferences, personal characteristics, and circumstances that are crucial to understanding why some people never smoke, some start but eventually quit, and others continue smoking.

As the menthol ban's proponents see it, even the choice to start smoking is not really a choice, because consumers—in this case, black consumers in particular—are no match for Big Tobacco's persuasive wiles. Gardiner cites the industry's history of "predatory marketing," while the anti-smoking Truth Initiative condemns "relentless profiling of Black Americans and vulnerable populations" by brands like Kool, Salem, and Newport.

That's one way of looking at it. Here is another: The federal government is targeting the kind of cigarettes that black smokers overwhelmingly prefer, precisely because black smokers overwhelmingly prefer them. The FDA also worries that menthol cigarettes appeal to teenagers, another "vulnerable population." Public health officials are thus treating African Americans like children in the sense that they don't trust either to make their own decisions.

"The proposed rules would help prevent children from becoming the next generation of smokers and help adult smokers quit," says Secretary of Health and Human Services Xavier Becerra. "Additionally, the proposed rules represent an important step to advance health equity by significantly reducing tobacco-related health disparities." The FDA notes "particularly high rates of use by youth, young adults, and African American and other racial and ethnic groups."

The federal government is implicitly denying the moral agency of black people, suggesting that they, like adolescents, are helpless to resist the allure of "predatory marketing" or the appeal of menthol's minty coolness. In the FDA's view, persuasion is not enough to break Big Tobacco's spell; force is required.

The FDA's legal license to prohibit menthol as a "characterizing flavor" in cigarettes comes from the Family Smoking Prevention and Tobacco Control Act. That 2009 law, which gave the FDA regulatory authority over tobacco products, banned flavored cigarettes but made an exception for menthol. At the same time, it left the FDA with "authority to take action" against "menthol or any artificial or natural flavor."

According to the menthol ban's supporters, the FDA is doing black Americans a favor by limiting their choices: Without the menthol option, black smokers may decide to quit, and fewer black people will take up the habit to begin with. The FDA says the menthol ban has "the potential to significantly reduce disease and death from combusted tobacco product use, the leading cause of preventable death in the U.S., by reducing youth experimentation and addiction, and increasing the number of smokers that quit." Nothing else matters in a "public health" calculus that attaches no value to individual freedom or consumer choice.

In addition to condescending assumptions, the FDA is displaying remarkable shortsightedness regarding the practical impact of its policy on the community it supposedly is trying to help. "Policies that amount to prohibition for adults will have serious racial justice implications," the American Civil Liberties Union (ACLU), the Drug Policy Alliance, the Sentencing Project, and 24 other organizations warned in an April 2021 letter to Becerra and Acting FDA Commissioner Janet Woodcock. "Such a ban will trigger criminal penalties, which will disproportionately impact people of color, as well as prioritize criminalization over public health and harm reduction. A ban will also lead to unconstitutional policing and other negative interactions with local law enforcement."

The ACLU letter noted that "a menthol cigarette ban would disproportionately impact communities of color, result in criminalization of the market, and exacerbate mass incarceration." The ban "also risks creating large underground, illegal markets." That "would be a massive law enforcement problem for states, counties, and cities, since all states treat unlicensed sale of tobacco products as a crime—usually as a felony punishable by imprisonment."

The FDA glides over that point, instead emphasizing that the agency "cannot and will not enforce against individual consumers for possession or use of menthol cigarettes." But many of those individual consumers will look for ways to continue smoking the kind of cigarettes they like, and that demand will be filled by other individuals, who in turn will be subject to criminal penalties.

The FDA "recognizes concerns related to how state and local law enforcement may enforce their own laws in a manner that may impact equity and community safety, particularly for underserved and underrepresented communities." Its solution is to request public comment on "policy considerations related to the potential racial and social justice implications of the proposed product standards."

The case of Eric Garner, who was killed by New York City police in 2014 during an arrest for selling untaxed cigarettes, gives you some idea of what the menthol ban will mean in practice. Garner's mother, Gwen Carr, is decidedly less enthused than the FDA about the paternalistic potential of banning menthol cigarettes. That policy, she warns, "has consequences for mothers like me," because it will give "police officers another excuse to harass and harm any black man, woman, or child they choose." Unlike the tobacco industry's "relentless profiling of Black Americans," which was limited to product pitches, this kind of profiling will involve armed agents of the state.

While most members of the Congressional Black Caucus voted for a 2020 bill that would have banned menthol cigarettes, there are dissenters. "A ban would possibly lead to illegal and unlicensed distribution," Rep. Sanford Bishop (D‒Ga.) told The Hill this week. "The banning of the menthol cigarettes would certainly push those people who prefer that to the illegal and illicit acquisition of those products."

As the ACLU et al. see it, the FDA is ignoring the lessons of drug prohibition by blithely adding another target to the list of arbitrarily proscribed substances. "Tobacco policy will no longer be the responsibility of regulators regulating, but police policing," they said. "Our experience with alcohol, opioid, and cannabis prohibition teaches us that that is a policy disaster waiting to happen, with Black and other communities of color bearing the brunt."

Such concerns explain why the menthol ban is controversial among African-American organizations, which have arrived at diametrically opposed positions based on clashing visions of racial justice. The National Association for the Advancement of Colored People (NAACP) endorsed the FDA's ban, saying "the tobacco industry has been targeting African Americans," thereby contributing to "the skyrocketing rates of heart disease, stroke and cancer across our community." But the ACLU letter attracted support from several African-American groups, including the National Black Justice Coalition, the National Association of Blacks in Criminal Justice, and the National Association of Black Law Enforcement Officers.

Maybe those groups and people like Gwen Carr are seeing something the NAACP doesn't. Although drug prohibition has racist roots and disproportionately harms black Americans, it attracted the support of black politicians who believed they were helping to save their communities from the scourge of drug abuse. That logic explains why supposedly liberal black Democrats like former Rep. Charlie Rangel, who represented Harlem from 1971 to 2017, joined Republicans and white Democrats like Joe Biden, then a Delaware senator, in backing draconian crack cocaine penalties that predictably fell most heavily on African Americans.

The sentencing scheme that Congress created in the 1980s treated smokable cocaine as if it were 100 times worse than the snorted kind, setting the weight cutoffs for mandatory minimum sentences accordingly. It also prescribed a five-year mandatory minimum for simple possession of as little as five grams—less than the weight of two sugar packets. Since blacks accounted for about four-fifths of federal crack defendants but a minority of cocaine powder defendants, the upshot was glaring, racially skewed disparities in punishment for similar conduct.

Black politicians recognized that reality pretty quickly (sooner than Biden did) and began pushing for crack sentencing reform. That effort ultimately led to the Fair Sentencing Act of 2010, which reduced the sentencing disparity between crack and cocaine powder, and the FIRST STEP Act of 2018, which made that change retroactive. By then, members of Congress overwhelmingly agreed that a drug policy supposedly aimed at helping black Americans had done far more harm than good.

The NAACP eventually reached the same conclusion about marijuana prohibition, which it opposes on racial justice grounds. On that issue, unlike the menthol ban, the NAACP and the ACLU are allies.

The insanely punitive response to crack "seemed like a good idea at the time," Rangel says in the Netflix documentary Crack: Cocaine, Corruption & ConspiracyBut in retrospect, he adds, "it was clearly overkill." In a few years, black leaders who supported the FDA's menthol cigarette ban may be saying something similar about that supposedly noble and enlightened policy.

NEXT: How Worrying Are Pro-Trump Gubernatorial Candidates Running on Rigged Election Claims?

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  1. Yet another story and Reason still hasn't addressed the bombshell from DHS regarding the formation of a ministry of truth by the Biden administration. This is the biggest anti-liberty thing I can think of in my lifetime to occur in the US (so since 1976) and it still doesn't register on Reason's radar.

    1. This is the biggest anti-liberty thing I can think of so far.
      More to come.

    2. Been looking for something on that subject myself. I think I'll look at hff post they are probably cheering that new disinformation board

      1. They have now published eight stories since the news broke and not a peep from Reason.

      2. You should read a libertarian publication for that.

        1. Could you recommend one

    3. Then go to another website. Problem solved.

      1. Oh you're one of those who doesn't realize Reason claims to be a libertarian site but is ignoring a major libertarian story. Okay, bub keep defending the total sale of Reason's reputation. Nothing to see here, ministry of truth, pah, no big deal, they banned menthol cigarettes and Republicans question the 2020 elections. Move along people.

        Idiot!!!

      2. I subscribed to Reason since I was a teen. I'm not handing it over to proggies so they can gaslight us with DNC narratives, Shrike.

        1. It’s not proggies. It’s the shitty-assed owner who pretends to be libertarian.

          Here’s the deal: He’s libertarian about the things he likes, like most people.

          Real libertarians care about the liberties they dislike too.

          So, suck it chuckie.

    4. "The Ministry of Peace concerns itself with war, the Ministry of Truth with lies, the Ministry of Love with torture and the Ministry of Plenty with starvation. These contradictions are not accidental, nor do they result from ordinary hypocrisy: they are deliberate exercises in doublethink."
      — 1984, Part II, Chapter IX

      Meanwhile let's look at some posts from AmSoc's new MiniTrue head:

      Nina Jankowicz ????????????????
      @wiczipedia
      Back on the "laptop from hell," apparently- Biden notes 50 former natsec officials and 5 former CIA heads that believe the laptop is a Russian influence op.
      Trump says "Russia, Russia, Russia."
      8:18 PM · Oct 22, 2020·

      Also Jankowicz:

      “We should view it as a Trump campaign product... Not to mention that the emails don’t need to be altered to be part of an influence campaign. Voters deserve that context, not a [fairy] tale about a laptop repair shop,”"

      1. Let's face it .... we ain't voting our way out of this.

    5. But menthols do.

    6. Worst day of your life so far...

    7. Problem + no solution = part of the problem.

      1. Solution is easy, no fucking government endorsed Board of Disinformation stick to the fucking constitution.

    8. Reason avoids the worst of the Biden administration. It certainly show tacit support by Reason of the authoritarian Biden Administration as it move to being a totalitarian government.

      Free and open debate is the way to find truth in a free society, this misinformation board is a tool of censorship and propaganda. Yet Reason chooses to ignore it in favor of menthol cigarettes.
      Reason has become a joke.

    9. Just because Reason doesn't worship the Trump-baby doesn't mean you have to pretend to be upset that they didn't write about something quick enough for you.

      Just go to The Unz Review with your own kind.

  2. "The FDA's legal license to prohibit menthol as a "characterizing flavor" in cigarettes comes from the Family Smoking Prevention and Tobacco Control Act."

    Thank you, Henry Waxman.

    1. no one needs more than one flavor

      1. No one needs more than one Waxman.

  3. Only the white man knows what is good for the black man.

    1. Progtard white saviors are the worst white saviors of all.

    2. You could just replace "menthol cigarettes" with "vote on your own volition" and this story basically would be the same.

      Democrats continuously tell black people that voting for anyone besides who they tell them will lead to the return of slavery and certain death, just like menthol cigarettes.

  4. You know, if we just took a page from China and locked the black folks in there houses they wouldn’t be able to buy any cigarettes at all. As long as you’re gonna shit on liberty go all out.

    1. That's next, they just adopted a ChiCom style board of disinformation at the DHS, I wouldn't put anything past them now.

  5. Well if they can’t lock ‘‘em up for crack and blunts, they’ll lock em up for Newpies.

  6. If menthol cigs are bad because they taste so good that some people will continue smoking them rather than quitting, maybe we should show we're serious about encouraging people to quit and require cigarette manufacturers to flavor their smokes with dogshit. After all, if it saves just one life . . .

    1. Or they could outlaw the addictive part, nicotine, but that would make way too much sense.

      1. or at the least make the manufactures produce nicotine free alternatives. but hey we aren't talking science here

  7. Looks like I'm going to have to start dipping my cigarettes in Listerine and PCP to get my fix instead of buying them already prepared. Thank You, Government.

    1. Formaldehyde in a p funk.

  8. What they mean is that 85 percent of black smokers prefer menthol cigarettes, compared to 30 percent of white smokers.

    I remember learning this independently when I worked in a convenience store as an elder teenager. Why all the black folks buy Newpo'?

    1. Supposedly Big Bad Tobacco decided that they should market menthols to Black people. Interestingly menthol cigs were discovered by accident in the 1930s when a pharmacist left his tobacco in a drawer with menthol crystals and they were not terribly popular for a long time-not making up more than 5% of the market until the 1970s, even among Blacks. I still don’t know what the attraction is because I think they taste like cough drops, but to each their own.

      1. Yeah, menthols are gross. I don't get it.

        But if they do ban them, anyone can get some menthol and put a few crystals in their pack and there you go.

    2. Honestly I think it's because Newport are associated with the names of cities and seem more urban and cool to city dwellers than Marlboro or camel. Even the ghetto white folks in Pittsburgh smoke Newports. And it doesn't seem like black folks smoke other brands of menthol, it's almost entirely Newports. I think it's the name and urban association more than the flavor.

      1. Are Kools not a thing anymore?

  9. As Guy Bentley, director of consumer freedom at Reason Foundation (which publishes this website), noted this week, the evidence on the latter point is mixed. But even if it were clear that menthol smokers are less likely to quit, that would not necessarily mean menthol cigarettes are inherently more "addictive." That debate tends to obscure the tastes, preferences, personal characteristics, and circumstances that are crucial to understanding why some people never smoke, some start but eventually quit, and others continue smoking.

    Evidence-based libertarianism! If putting chains on people worked as intended, then ok!

  10. It is amusing to watch wokeness consume itself

    1. I used to think that, but even while consuming itself, it continues to grow out of control, like some kind of black void sucking everything into it until the universe is destroyed.

    2. If they’re successful in curving smoking, Watch the panic when they realize they’re losing tax revenue.

  11. "Black politicians recognized that reality pretty quickly (sooner than Biden did) and began pushing for crack sentencing reform."

    I would imagine they knew about the disparities when they supported the laws - because they *wanted* extra-harsh treatment for crack dealers. That was when racial justice was about "why don't the white people help us clean up our communities? It's because they don't care about black people dying of drug overdoses, that's why! If you *really* care about black people, you'll want to put these crack dealers in prison!"

    Now the "racial justice" angle is to look at these crack laws and say, "look at how white people disproportionately imprison black people!"

    So it will be with these Menthol cigarettes. Either legalizing them is racist, or banning them is racist, depending on what the narrative needs at a particular time.

    1. Bottom line - you can't out-woke the woke.

      You can point out the problems with their reasoning, but reasoning isn't really their thing.

      A cat with nine lives has nothing on wokeness. Freddy Krueger has nothing on them. You can refute the woke time and time again and they climb back up from the grave and do the same old stuff.

  12. That logic explains why supposedly liberal black Democrats like former Rep. Charlie Rangel

    CHARLIE RANGEL!

  13. It wasn't just Rangel -- the majority of the black caucus demanded the harsher sentencing for crack and called you a racist who wanted black children to die if you DIDN'T support the sentences.

    Get your history straight!!!!

    1. The charge of racism is a tool. It's a lever. Nothing more.

  14. no one needs the government to save them. if black people enjoy menthol cigarettes, so what? they make the individual choice to smoke and they don't need the gov to create anti-liberty regulations to save their health. oh and at the same time weed is legal everywhere. this proposed law is ridiculous.

    1. If it wasn't for Newpo', Michael Kenneth Williams would still be alive!

  15. This may have unintended consequences. When I started smoking, back in ‘72, we’d smoke menthols because the menthol opened up the bronchi and gave us more of a buzz than a non-menthol cigarette. After a while I’d smoke more cigarettes and never get a buzz, so I no longer got that benefit and switched to non-menthol. If I’d been too poor to afford many cigarettes, I might have continued to smoke menthols for the better buzz. Now, if this ban goes through, poor people may end up smoking slightly more to get the same effect. Nicotine is one of the hardest addictions to quit and I doubt many people will smoke less if menthol cigarettes are banned.

  16. Reason has avoided the Hunter Biden laptop.
    Reason has avoided the Ashley Biden diary.
    Reason has avoided Ray Epps.
    Reason has avoided Biden's cognitive decline.
    Reason has avoided Jen Psaki's conflict of interest as Press secretary and MSNBC contract.
    Reason has avoided Biden's stagflation.
    Reason has avoided Biden's cognitive decline.
    Reason still blames Trump for everything Biden screws up.
    I am seeing a pattern here.

  17. Decades of evidence have confirmed that menthol and nonmenthol cigarettes are similarly addictive, harmful and hard to quit smoking.

    For the past three decades, Democrats in Congress (and for the past decade, Obama/Biden's FDA) have played the racist card by accusing tobacco companies of targeting menthol cigarettes to "less smart" blacks, and by proposed banning menthol cigarette sales (to purportedly protect blacks).

    And since 2009, during multiple attempts to ban the sale of very low risk vaper products (that have driven teen smoking rates down by 90% to just 2%, cut young adult smoking by half down to 7%, and have helped ten million smokers quit) Obama/Biden's FDA has falsely claimed that vaping has addicted millions of teens, is a gateway to cigarette smoking, doesn't help smokers quit smoking, and may be more harmful than cigarettes.

    FDA's still hasn't processed more than a million new product applications by vapor manufacturers, and has legally banned the sale of >99% of vapes current market (because the deadline for their applications has expired, but FDA is delaying banning them
    (because doing so would create a huge black market and prompt many vapers to switch to far more harmful cigarettes).

    The FDA still hasn't approved (nor processed) >1,000 Substantial Equivalent applications filed by cigarette manufacturers more than a decade ago.

    Since Congress enacted the Big Pharma/Altria sponsored Tobacco Control Act in 2009, Obama/Biden's FDA (and the deep staters they installed at FDA's Tobacco Products Center) have been protecting cigarette consumption, monopolies, sales and profits (by banning and imposing multi milion dollar regulations on all far less smokefree alternatives) while falsely claiming their regulations protect public health.

    1. A key reason a higher percent of blacks smoke (than whites) is because blacks have just one third the vaping rate as whites.

    2. If vaping is not a gateway to smoking, they seem intent on making it one.

  18. The article didn't mention that they would delay enforcement until after the 2024 election.

    1. That's so that "misinformation aimed at minorities" won't be able to accuse the Dems of empowering the police to harass black people, at least not before black people have the chance to vote for Democrats in 2024. Then the anti-menthol police will be their reward for Democratic loyalty.

      1. I must say, black people must really hate the Republicans if they keep inflicting Democrats on themselves.

        1. The problem is that black leaders are all carpet baggers. Look how they're all criminal rappers tgat get big and famous. Or ballers that been on black market mafia growth homone expiriments since puberty. Only tge corrupt get famous. Only the corrupt can be controlled. Only after i broke the sandy allen cia/capone-family growth-hormone athletic-program story did you hear it out of any of the nba. It's a little more complicated tho than simply growth hormomes. Humands arent meant to grow that big. Theyre getting secondary backup hearts somewhere. Likely china.

          Making puppet carpet baggers is a nasty, ancient, aristocratic foreign/domestic policy. Same ploy the british used to kill mahatma gandhi.

          1. Or the epitome of liar seething slime bags, theists.

  19. Cigarette smoking is down all the way around, tbh. Isolated-nicotine product use is up.

    The biggest issue with the isolated-nicotine product development is the lack of mg. When you smoke, you smoke till you're sick of it. This is when you're nearing you maximum tollorance and are on the verge of overdose. Isolated-nicotine products are regulated to a very low nicotine content and cannot achieve a total dose. Thusly you vape tull you develop pneumonia from all the vg and pg sitting in your lungs long before you get sick of it. If you cant reach overdose with it, you cant get satisfied on it. Personnaly, i use 100mg salts. Sure ive overdosed a few times when miscounting how mant hits i take, but its just 4-7 gut renching vomits and a couple cold sweats.

    One guy didnt believe me how much of my 100mg to take. He was some kind of meth guy and thought he was invincible. He took a 400% dose of a maximum tollorance useres dose. He was curled up on the floor in a pool of vomit begging for someone to kill him, for ten minutes. He was fine after that. This stuff is pretty safe at 100mg = 10%. Most you can market is 2%? That just cant compete with cigarettes and is very likely to cause pneumonia.

    I think further attacks on the cigarette industry is borderline vindictive, if not outright a secondary teardown business of its own. Its like a mafia of what causes cancer systematically targeting anything they can get their grubby little hands into.

    All that said, menthol is pretty bad for ya. Its not even real menthol btw. Only a cherry ass gutless worm needs sugar in their coffee.

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