Public health experts can reasonably argue that the pending rule targets African Americans in the best possible way. The real disparate impact, so this thinking goes, is in the way tobacco companies have aggressively marketed menthol cigarettes in Black communities over the decades. I understand all of that. But I can’t rush to cheer a new policy that puts a terribly unhealthy — but perfectly legal — practice enjoyed so disproportionately by African Americans on the wrong side of the law.
The Food and Drug Administration, which announced last week it will move forward to finalize the menthol ban, made clear that the prohibition is not meant to be enforced against individual smokers. “If implemented, the FDA’s enforcement of any ban on menthol cigarettes and all flavored cigars will only address manufacturers, distributors, wholesalers, importers and retailers,” the agency said in a news release.
Call me skeptical. Because of, you know, American history and America’s present.
“The FDA will work to make sure that any unlawful tobacco products do not make their way onto the market,” the news release said. So how, exactly, is that supposed to work?
Given all the ways that Americans of all races manage to obtain illicit mood-altering substances of all kinds, we should anticipate the emergence of an underground market in menthol cigarettes. U.S. manufacturers and distributors would no longer be able to meet the demand, and neighboring Canada has already banned menthols.
But Mexico has not. If a corner store in the Mississippi Delta or on the South Side of Chicago or in south Los Angeles sells south-of-the-border Salems under the counter to meet local demand, how will the FDA’s policy work? Will police have the duty to confiscate smuggled Newports from mom-and-pop bodegas? Would the new rule give police a mandate to crack down on the sale of “loosies” — single cigarettes — to make sure menthols aren’t reaching smokers even one at a time?
More to the point, wouldn’t the menthol ban give authorities a new reason to target the average Black person, minding his or her business and smoking a cigarette, for alleged illicit activity, all the while making sure that the average White smoker isn’t suspected of doing the same?
I can think of a lot of things this society needs. Another reason to consider Black people guilty-until-proven-innocent is not one of them.
I do realize that the arguments on the other side of this issue are powerful. The way that Big Tobacco has flooded Black communities with menthol advertising and product has indeed been obscene. And while many menthol smokers will just switch to non-menthols, at least some will quit smoking. Those who give up the habit will avoid the devastating consequences of a smoking habit, including a dramatically increased risk of dying too soon from cancer, heart disease or other maladies caused or aggravated by cigarettes.
It is also true that menthols are a tragic “gateway”: The CDC estimates that 93 percent of Black adults who smoke started out smoking menthols, compared with just 44 percent of grown-up White smokers. And no wonder: The menthol flavoring partially masks the acrid harshness of tobacco smoke. Even if kids and young adults ultimately switch to other kinds of cigarettes, menthols provide an easy introduction to a lifetime habit.
There is little data to tell whether a ban on menthols that went into effect last year in the European Union and Britain has had the desired effect. A few studies of the Canadian ban, which began in selected provinces and was made nationwide in 2018, show that menthol smokers were significantly more likely to try to quit, and even to succeed, than other smokers. However, a recent study of the Canadian prohibition by the National Bureau of Economic Research in Cambridge, Mass., concluded that menthol bans “are unlikely to be a panacea” because so many youths switched to non-menthol smokes and so many adults got their menthols anyway from Native Canadian reserves, which were exempted.
The FDA won’t go anywhere near the third rail of proposing a ban on all cigarettes. If the agency really wants to stop smoking and end health disparities, it will have to work with Black Americans, not just target us.