A Menthol Flavor Ban Would Have Unintended Consequences

Most Americans will have likely heard about the Food and Drug Administration’s (FDA) new plan to prohibit all menthol cigarettes and flavored cigar sales in the United States. The plan, which is already being described as the biggest cigarette crackdown since the 1960s, would effectively ban one of the most popular tobacco items on the market. It is also unlikely to work.

Advocates of the ban contend a flavor prohibition is necessary to improve overall health outcomes and reduce the number of deaths attributed to smoking. Unfortunately, this bold policy proposal is likely to have several unintended consequences. Among these is helping create new elicit markets that squander public resources and increase the likelihood of confrontation between law enforcement and those who are disproportionally people of color. History tells us that prohibitions push people to unregulated black markets where product safety is far from certain.

Americans agree. A 2019 poll by USA Today and Ipsos found that 59% of Americans, and 82% of those who use regularly use e-cigarettes, believed a vape ban would “drive consumers to purchase products from unlicensed dealers.” An additional 72% of e-cigarettes users said government regulations would also “not reduce the overall number of Americans who used vaping products.” There is little reason to believe Americans would feel any different about a national menthol cigarette and flavored cigar ban.

There is also evidence that prohibitions lead consumers to switch to other harmful products. In a 2021 study that evaluated the impact menthol cigarette bans had on cessation and smoking behaviors in Canada, researchers found that 59.1% of menthol smokers simply switched to non-menthol tobacco products, while 21.5% quit tobacco or switched to non-combustibles, and 19.5% continued using menthols.

Other studies have produced similarly negative results. JAMA Internal Medicine recently published a report that examined changes in consumer habits following the passage of Massachusetts menthol flavor ban. What researchers found was that after one year, sales had declined by 24%. However, upon closer inspection, it was revealed that 90% of this decline was attributable to sales shifting to neighboring states. In fact, there is little evidence consumption patterns changed at all. Once more, Massachusetts own Multi-Agency Illicit Tobacco Task Force found evidence that the menthol ban led to a noticeable increase in the cross border smuggling of flavored cigarettes.

A national menthol cigarette and flavored cigar ban is also likely to disproportionally impact African Americans. Research shows that 85% of black smokers prefer menthol cigarettes to traditional cigarettes. This is compared to just 30% of white smokers. The FDA justifies such a selective prohibition based on these disparities and the fact that the menthol flavor, in particular, appeals to the American youth.

However, the higher menthol cigarette usership rate among African Americans is why several prominent civil rights groups and activists have taken issue with the FDA’s recent announcement.

For instance, in April of 2021 the American Civil Liberties Union (ACLU) issued a statement that called on the Biden Administration to “rethink its approach and employ harm reduction strategies over a ban that will lead to criminalization.” This statement was supported by several notable African American organizations such the National Black Justice Coalition (NBJC) and the National Association of Blacks in Criminal Justice (NABCJ). Similarly, civil rights leaders like the Rev. Al Sharpton have issued their own statements opposing the FDA’s plans.

At the very least, these very public disagreements within African American circles should give the FDA pause about the merits of their arguments in favor of flavor prohibitions. Many African Americans know all too well the risks of overcriminalization, and how even well-intentioned laws can negatively impact their communities.

There is also little evidence that menthol flavor cigarettes serve as much of a gateway drug for young Americans as the FDA believes.

In 2021, just 39% of middle school and high school students who smoked reported using menthol cigarettes, meaning the majority of students preferred alternative tobacco products. In addition, smoking rates continue to decline for all Americans, including for those under 18, irrespective of the number of available flavors. While menthol flavoring has been around for decades, many other flavors have not. Had these flavors been the actual driver of young Americans decision to start smoking, one would assume that the percentage of youth who smoke would be continuing to rise. However, the opposite is true.

In addition, one could easily make the case that plentiful flavors of any product, including alcohol, would be equally appealing to American youth and lower-income communities. Yet, there are no similar federal prohibitions on these products. The FDA should think very carefully about the implication of implementing such a sweeping ban on menthol cigarettes and flavored cigars.

Risk mitigation is a much more effective strategy for reducing the rate of smoking among Americans. More importantly, it avoids many of the common pitfalls of prohibition and doesn’t discriminate against one group of Americans.

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