D.C. balances public health and racial sensitivities in its menthol ban

A man smokes an electronic cigarette in Chicago on April 23, 2014. (Nam Y. Huh/AP)

The D.C. Council voted Tuesday to ban the sale of all flavored tobacco products — including fruity e-cigarette liquids, candy-tinged cigars and menthol cigarettes — entering a thicket of racially charged controversy and emerging with a reasonable compromise plan to promote public health.

The legislation began as a proposal targeting flavored e-cigarette liquids such as bubble gum and mango, which were obviously designed to appeal to children. But if the council banned only flavored e-cigarette liquids, they could push children, particularly those already hooked on nicotine, toward far more dangerous products still permitted to be flavored, such as combustible cigarettes cut with menthol, an additive that ameliorates the harshness of cigarette smoke. So council members moved to ban those, too.

This invited a sharp dispute that mirrored the debate on banning menthol flavoring nationally. Menthol cigarettes are popular among Black adult smokers, and some council members raised fears that District police would overzealously enforce the ban, harassing Black people if they violated the prohibition. These concerns are not far-fetched, as the 2014 death of Eric Garner suggests: New York City police put Garner into a chokehold after approaching him on suspicion of illegally selling loose cigarettes.

So D.C. lawmakers empowered the Department of Consumer and Regulatory Affairs to enforce the ban, rather than D.C. police. The legislation also targets purveyors of tobacco products, not smokers. Menthol cigarettes kill lots of Black people every year, and preventing another generation from getting hooked on flavored tobacco products targeted at them would be a victory for the Black community. The council showed that public health and racial sensitivities need not compete on this issue.

Another question is why the District needs to act, when the federal Food and Drug Administration has already said it intends to crack down on menthol cigarettes and other flavored tobacco products. The answer is that any federal prohibition is still a long time away from enforcement, its details remain unclear and the policy will be subject to legal challenge once federal regulators do promulgate it. State- and city-level regulation would backstop any federal effort and provide another layer of enforcement.

Yet local enforcement alone would leave wide avenues for flavored products to enter the market. In a jurisdiction such as Washington, people could easily travel to Maryland or Virginia to stock up. For the District’s effort to pay off fully, neighboring states must enact similar policies. And the federal government must come through with strong rules shutting down the flow of flavored tobacco products across the country. The health of future generations depends on it.