The American Civil Liberties Union (ACLU) and a host of civil rights groups have warned the Biden administration against a reported proposed ban on menthol cigarettes, noting it would have “serious racial injustice implications.”
In a letter sent this week to Health Secretary Xavier Becerra, Food and Drug Administration head Janet Woodcock and other officials, the ACLU, along with 26 other organizations – including a number of drug legalization groups – said the “well-intentioned” move had the potential to create “large underground, illegal markets.” This would be a “massive law enforcement problem.”
“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 said.
Referencing the deaths involving police of George Floyd, Daunte Wright, Ma’Khia Bryant, and Eric Garner, the letter said: “A ban will also lead to unconstitutional policing and other negative interactions with local law enforcement... In the end, tobacco policy will no longer be the responsibility of regulators regulating, but police policing.”
The letter came ahead of a Thursday court-mandated deadline for the FDA to respond to a 2013 citizen’s petition seeking a ban on menthol cigarettes.
Sometime this week, the Washington Post reported, President Biden is expected to propose a ban on menthol cigarettes – a move supported by civil rights organizations and anti-smoking groups, who say the mint-flavored cigarettes are aggressively marketed towards African Americans and are a gateway to long-term smoking for young people.
Earlier this month, prominent civil rights bodies, including the National Association for the Advancement of Colored People (NAACP), called for Becerra to treat the “predatory marketing” of menthol cigarettes and other flavored tobacco products as a “social justice issue.”
But the ACLU and other prohibition critics cite the “experience with alcohol, opioid, and cannabis prohibition” as an indicator that an outright ban is a “policy disaster waiting to happen, with Black and other communities of color bearing the brunt.”
It is not yet known what the punishment would be for illegally obtaining menthol products under the proposed ban – although the letter notes that the unlicensed sale of tobacco products is usually treated as a felony crime punishable by imprisonment.
The letter suggested increased funding for youth education, smoking cessation programs, and healthcare programs for communities of color as alternatives to “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.”
In addition, any such prohibition would take years to enter into effect and would likely draw legal pushback from the tobacco industry.
In a statement cited by the media, British tobacco maker Imperial Brands said there was “no conclusive science to support a ban on menthol,” and added that it did not “anticipate any significant impact on our US business” since it expected most menthol smokers to switch to other cigarettes.
A recent report by Bernstein research, provided by Reuters, estimated Imperial Brands generated 30% of its cigarette volumes in the US from menthols. That figure goes up to 55% for British American Tobacco.
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