Menthol Tobacco Ban Appears Inevitable. Expect a Healthy Black Market, More Criminal Justice Inequities

Jeffrey A. Singer

In April 2022, when the Food and Drug Administration announced plans to ban the sale of menthol cigarettes and cigars, I blogged about it, explaining why it was a bad idea. Later, in response to the agency’s request for public comments on the proposal, I submitted these comments, which stated the agency’s war on menthol tobacco is not evidence‐​based and warned that a ban would fuel a black market and worsen criminal justice inequities.

Alas, my warnings went unheeded. Last Friday, the FDA formally submitted its proposed ban to the Office of Management and Budget. The OMB can make final tweaks to the proposed rule, but this is one of the last steps the FDA must take before the rule goes into effect. The Biden administration supports the ban and will likely encourage the OMB to sign off.

In my comments, I stated that, according to the National Survey on Drug Use and Health, in 2020, 81 percent of Black and 51 percent of Hispanic smokers preferred menthol‐​flavored cigarettes. While the proposed rule is intended to reduce tobacco‐​related health outcome disparities in Black and Brown communities, a closer look at the data on menthol cigarettes, as well as the European Union’s experience with a menthol ban, suggest that the proposed product standard will not work, and will likely foster a black market. Perhaps even worse, the ban might further aggravate criminal justice inequities.

Interestingly, researchers from Yale and Duke universities reported on what is already happening where states have banned menthol tobacco just last week in the Journal of the American Medical Association:

Synthetic chemicals that mimic menthol’s cooling sensations are being added to newly introduced “non‐​menthol” cigarettes in states that have banned the additive. The additives appear to be an effort to circumvent an expected federal ban of menthol cigarettes by the FDA later this year. Already, California and Massachusetts have enacted laws banning sales of menthol cigarettes.

In 2011, researchers conducted a prospective cohort study with over 85,000 participants in twele southern states. They concluded: “The findings suggest that menthol cigarettes are no more, and perhaps less, harmful than non‐​menthol cigarettes.”

Interestingly, research conducted by Dr. Brian Rostron of the FDA Center for Tobacco Products and reported in the October 2012 journal Nicotine and Tobacco Research concluded: “We found evidence of lower cancer mortality risk among menthol smokers compared with non‐​menthol smokers among smokers at ages 50 and over in the U.S. population.”

A study published in the Journal of the National Cancer Institute in April 2022, involving a large cohort of African Americans and Whites in twelve southern states recruited between 2002 and 2009, found that menthol smokers had no greater difficulty quitting tobacco than non‐​menthol smokers. Perhaps more significantly, the researchers performed a meta‐​analysis of all the research on menthol cigarettes and cancer risk and concluded, “A significantly lower risk [12 percent lower] of lung cancer is seen among menthol smokers.”

A January 2020 study by the Reason Foundation found states with the highest menthol cigarette consumption had the lowest youth smoking rates.

If the FDA is basing its ban on concerns about teen smoking, the agency’s regulators should know that the US Centers for Disease Control and Prevention reported in March 2022 that 60 percent of teen smokers choose non‐​menthol cigarettes.

Menthol smokers tend to smoke fewer cigarettes per day. This might help partially explain the lower lung cancer mortality rate among menthol cigarette smokers.

The EU banned menthol cigarettes in 2020. A recent EU survey finds 40 percent of menthol smokers switched to non‐​menthol, and only 8 percent quit smoking. And menthol smokers have come up with workarounds, such as “mentholizing” recessed cigarette filters and menthol flavor inserts, or have added menthol to their tobacco.

More importantly, however, 13 percent reported getting menthol cigarettes from “other sources.” A black market for smuggled menthol cigarettes has emerged. A significant source is Belarus, where menthol brands such as Minsk, Fest, and Queen are smuggled into EU countries. The UK press reported that such “illicit whites,” as they are called, are smuggled into the country by gangs and can be purchased “under the counter” from small British tobacconists for the right price.

But worst of all, banning menthol cigarettes can exacerbate racial and ethnic inequities in law enforcement and the criminal justice system.

As I wrote to the FDA in my public comments on the proposed rule:

Prohibition fuels an underground market where peaceful, voluntary transactions become crimes. It gives law enforcement another reason to interact with non‐​violent people who commit these victimless crimes. Like everyone else, police respond to incentives. They are rewarded by arrests and convictions. Low‐​level street dealers in illegal substances are “low‐​hanging fruit.” They are much easier to find in dense inner cities and less dangerous to confront than violent felons. Law enforcement tends to scour racial or ethnic minority communities for victimless crimes because they are “easy pickings.” That’s how we wind up with African Americans arrested for marijuana violations four times as often as whites, even though both groups use marijuana roughly equally.

And never forget Eric Garner. New York City’s exorbitant taxes on cigarette packages generated an underground market in untaxed individual cigarettes, called “loosies.” In 2014, police infamously encountered 43‐​year‐​old Eric Garner selling loosies on a street corner, and a policeman’s chokehold led to his death as he repeated, “I can’t breathe.” This happened without a menthol ban. With menthol cigarettes more popular among Blacks and Hispanics, expect police to focus their attention on minority communities.

The last thing this country needs is yet another reason for law enforcement to engage with minorities they suspect are committing the victimless crime of selling menthol cigarettes in the black market.

Sadly, it appears the menthol‐​ban train has already left the station. This means more business opportunities for purveyors of black market products—ranging from illicit drugs to cigars and cigarettes. And if history teaches us anything, we can expect to witness many harmful unintended consequences.