ACLU warns Biden administration against menthol ban, cites ‘racial justice implications’

The Biden administration is reportedly planning to ban menthol cigarettes in a move that activists say would help Black Americans who are disproportionately harmed by the tobacco industry, but critics claim it will do the opposite. The alleged ban comes as the FDA faces a deadline to respond to a 2013 citizen petition to act on menthol products, which escalated to a court filing in June 2020.

According to the Centers for Disease Control and Prevention (CDC), the tobacco industry has aggressively marketed menthol products to young people and Black Americans, and have historically placed larger amounts of advertising in Black publications. Over 7 out of 10 Black youths ages 12-17 who reported smoking use menthol cigarettes, and Black adults have the highest percentage of menthol cigarette use compared to other racial groups.

The alleged ban would not take effect immediately but would set into action FDA policies surrounding menthol cigarettes and other flavored tobacco products. Proponents of the ban believe menthol cigarettes to be a social justice issue, but critics say a ban could lead to an underground market for such products, and more opportunity for criminal activity.

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In a letter sent to Health and Human Services Secretary Xavier Becerra, acting FDA Commissioner Janet Woodcock and several other officials, the ACLU along with dozens of others including the Drug Policy Alliance said while such a ban “no doubt well-intentioned,” it would have “serious racial justice implications.”

“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,” the letter stated. “A ban will also lead to unconstitutional policing and other negative interactions with local law enforcement.”

The letter referenced the recent police-involved deaths of George Floyd, Duante Wright, Ma’Khia Bryant and Eric Garner.

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“A number of police encounters resulting in tragic deaths are linked to police enforcement of tobacco laws: Eric Garner, killed by a police chokehold, was illegally selling ‘loosie’ cigarettes, and Michael Brown was killed after being suspected of stealing a box of cigarillos,” the letter stated. “Even in the case of George Floyd, police were called to investigate a counterfeit bill used to purchase cigarettes.”

The letter called for an approach that would “avoid solutions that will create yet another reason for armed police to engage citizens on the street based on the pretext or conduct that does not pose a threat to public safety.”

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It is not confirmed what the punishment would be for illegally obtaining menthol products under the proposed ban, but the letter called for an approach that “avoids criminalization.”

“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,” the letter stated.