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Sept. 24, 2022

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Advocates urge FDA action to ease policing fears in menthol ban

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WASHINGTON — Experts and advocates are calling on the Biden administration to do more to avoid potential confrontations between police and racial minorities if the Food and Drug Administration finalizes a ban on menthol cigarettes.

But they also fear the issue is largely out of the FDA’s hands.

Officials hope they can stem tobacco-related cancers that afflict Black smokers at higher rates by targeting menthol, the cooling effects of which make it easier to start smoking and tougher to quit. But those concerns have clashed with policing and racial justice groups that worry the ban will create illicit markets, leading to heavier policing in communities where cigarettes are often bought and sold on the street.

At the same time, tobacco companies have long targeted Black smokers with heavy advertising, and Black people are more likely to die from tobacco-related cancers. An estimated 85% of Black smokers use menthols, according to the FDA, compared with 30% of white smokers.

In April, the agency asked for public feedback on the issue in its proposal. The rule would take effect a year after it’s finalized, although industry observers expect that process to potentially take years.

While the FDA rule would only apply to companies that manufacture, distribute or sell menthol cigarettes, not individuals who possess or use them, critics fear state and local laws will lead law enforcement to police individual use as well.

“It would be valuable for the FDA to opine as much as possible on the importance of not translating this ban into discriminatory local policing,” said Liz Komar, counsel for The Sentencing Project, a nonprofit that advocates for reduced incarceration. Her group opposes the ban.

Komar fears there is little the FDA can do to stop discriminatory policing, pointing to the federal retail ban on selling individual untaxed cigarettes, or “loosies,” which has been broadly replicated at the state and local level.

“I have those concerns too,” Rep. Robin Kelly, D-Ill., who chairs the Congressional Black Caucus’ Health Braintrust, said.

But Kelly backs the FDA proposal and recently led a public letter of support from fellow CBC members. She said the issue often boils down to better training and education about proper enforcement at the local level.

“Not just in tobacco but in all things,” she said.

Suspicion of illegal sales has led to some violent encounters between police and Black people. In 2014, Eric Garner was killed after police stopped him on suspicion of illegally selling cigarettes. In 2020, 14-year-old Elijah Tufono was beaten after allegedly selling tobacco products.

Supporters of the ban are calling for the FDA to collaborate with other departments and stakeholders in finalizing the rule, both to provide clear parameters for enforcement and to provide more culturally tailored resources in helping smokers quit.

Keith Taylor, a former police officer and an adjunct assistant professor at the John Jay College of the City University of New York, said collaboration will be “incredibly important.”

“There has to be a coordinated effort,” he said. “You have to include considerations of law enforcement and health providers, all sorts of stakeholders who have a part, a role in this issue. What does making menthol cigarettes illegal mean to the populations who are addicted to it in communities of color? Where do they seek resources to help with their addiction?”

Carol McGruder, co-chair of the African American Tobacco Control Leadership Council, also called for a prohibition on domestic manufacturing of menthol cigarettes to help combat illicit sales.

“We want the same vim and vigor coming from public policy, public health advocates, to help our people as was done in neglecting our people and allowing the tobacco industry’s pernicious targeting,” she said during the FDA’s public listening session in July.

A number of law enforcement groups have lined up against the ban, saying police departments are overtaxed and under-resourced.

“Of course, we don’t enforce FDA law,” a coalition including the National Organization of Black Law Enforcement Executives and National Association of Police Organizations wrote to the FDA. “(But) we do enforce state laws that prohibit the manufacture, sale, transportation, and possession of untaxed cigarettes — which is exactly what all menthol cigarettes found in our communities in the future will be, regardless of how they get there.”

Critics of the proposal point to the ongoing decline in smoking rates as evidence the FDA should continue to focus on harm reduction and public education instead. Vaping advocates have blasted the FDA’s crackdown on e-cigarettes, which they argue are a less toxic alternative.

Public health advocates, by contrast, have largely downplayed policing concerns, pointing to money that groups like NOBLE, the American Civil Liberties Union and the Rev. Al Sharpton’s National Action Network — which is instead calling for a racial impact study — have taken from the tobacco industry.

“The tobacco industry playbook involves trying to get false narratives out there, paying people to keep getting false narratives out there, and then hoping that the media picks them up and carries them,” said Kevin Schroth, an associate professor at the Rutgers School of Public Health and a former tobacco counsel at the New York City Department of Health and Mental Hygiene.

A nationwide ban would also combat illicit markets that exist in states like Massachusetts, where menthol cigarettes are already outlawed, Schroth argued.

Representatives for NOBLE, the ACLU and NAN did not respond to requests for comment.

Echos of the War on Drugs

For some criminal justice experts, the prospect of a menthol ban conjures parallels to historical inequities in enforcement against illegal drugs like marijuana, or crack and cocaine during the war on drugs in the 1980s and ‘90s.

Delores Jones-Brown, a criminal justice professor at Randolph-Macon College, pointed to the era when New York City police officers were arresting people with decriminalized amounts of marijuana.

“What they were physically doing and what was actually allowed was very different,” she said. “So arguably there is a danger in police departments misinterpreting whatever the statute is that the FDA comes up with.”

Komar also noted the federal government justified the extreme disparities in enforcement against crack cocaine — which was cheaper than powdered cocaine and more prevalent in communities of color — on health.

“And of course we now know the flaw in that reasoning was that it’s not about the substances, it’s about the way that laws are enforced,” she said.

The FDA projects that as many as 238,000 Black deaths would be avoided over the next four decades if menthol is outlawed. The agency cited studies showing that smoking overall would decline 15%, which would avoid as many as 654,000 deaths across all races.

The issue will continue to divide. Minou Jones, founder of Michigan’s Making It Count Community Development Corporation, testified to the FDA about losing friends and family to smoking over the years. Jones, who is Black, described memories of models in gold jumpsuits marketing menthol cigarettes at music festivals.

She previously opposed Michigan’s law raising the legal tobacco age to 21 over the state’s “antiquated” penalties for minors. But Jones, who has five sons, harbors no fears about a menthol ban.

“I refuse to let an industry that makes money off of death and disease manipulate our collective trauma,” she said, “and stand in the way of meaningful overdue change that will save lives.”

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