Rethinking the FDA’s menthol ban

OPINION:

In 1920, American lawmakers took a bold and unprecedented step: the complete prohibition of producing, selling and transporting alcoholic beverages.

While policymakers believed it was in Americans’ best interest to curb the harm inflicted by alcoholism, the policy turned out to be an abject failure. It led to an extensive underground bootlegging and speakeasy industry, where illegal alcohol production and distribution thrived. In addition, it fell short of its intended goal of reducing alcohol consumption as high demand persisted and instead resulted in widespread noncompliance with the law and a lack of public support.

Ultimately, it was repealed, underscoring the difficulty of banning a widely legal product and the unintended and often dangerous consequences that can arise from such prohibitive measures.

Fast forward to 2023: The federal government is on the verge of repeating past mistakes by prohibiting a legal product that represents one-third of the tobacco market: menthol cigarettes. Earlier this year, the Food and Drug Administration announced its intention to ban them.

Instead of taking a science-based approach to tobacco policy that leads to a robust alternative market of harm-reducing products for smokers to transition to, the FDA has unfortunately learned the wrong lessons from the 1920s, and that’s nothing at all.

In 2009, Congress authorized the FDA to oversee the manufacturing, marketing and distribution of tobacco products. The tobacco industry’s complexity, with its many product variations and marketing strategies, has posed a challenge to the FDA in crafting and enforcing comprehensive regulations.

Despite more than a decade of introducing bans and regulations, especially concerning electronic cigarettes, there has been no effective enforcement strategy for these policies. What resulted were regulatory gaps and an unintended increase in the use of illegal flavored vapes, so much so that sales of e-cigarettes increased by 122.2% between September 2014 and May 2020.

Despite the FDA’s failure to properly regulate e-cigarettes, the agency is expected to roll out nationwide bans on menthol cigarettes and flavored cigars soon. The latest update indicates that the proposed ban has been submitted for review to the Office of Management and Budget, marking one of the last steps before the final rules are unveiled.

With the same intention as those in 1920, an aim to reduce consumption of a legal product, we will be sure to face similar unintended ripple effects of this move, potentially leading to dangerous consequences.

With the proposed bans, we can expect to see the rise of a vast illicit market of menthol products. This isn’t a hypothetical scenario; it’s already happening in California. As the state cracked down on flavored tobacco products, including menthol, something unsurprising occurred — the demand didn’t dwindle. Instead, it was met with a surge in underground markets.

Criminal organizations, notably the Mexican cartels, saw a golden opportunity to profit from this prohibition. With our open border and their established smuggling routes and networks, the cartels stood ready to seize the opportunity to capitalize on the burgeoning and highly profitable menthol black market. With a federal ban on the horizon, this effort is a ticking time bomb, ready to explode once the FDA’s menthol ban takes effect.

Amid these concerns, we can’t ignore the implications of such a ban on Americans disproportionately affect by the FDA’s decision. Menthol cigarettes are the product of choice for a large majority of Black Americans who smoke. According to Stanford Medicine, menthol tobacco products constitute just 39% of the total cigarette market but make up 85% of the products used by Black adult smokers.

Despite supporters of the ban arguing it will help curb smoking rates among Black Americans, it instead leaves them to be the target and victims of such a ban.

For a community already leery of the role of enforcement policies, this is a recipe for disaster and almost guarantees an increased risk of intervention, making this group of Americans more susceptible to being targeted and victimized. This is about freedom and preventing a possibly well-intentioned policy from inadvertently causing even more harm.

Instead of doubling down on a failed approach, the FDA should focus on finding ways to both curb smoking rates and protect public health. As a middle school student, I participated in a faith-based program at a conference in Sacramento, California, that educated me on the dangers of tobacco and its impact on Black Americans, and it worked without us being prohibited from buying cigarettes. An outright ban on menthol cigarettes is a blunt instrument that fails to consider the reality of the 30 million Americans who smoke.

The era of Prohibition made America’s alcohol problem worse, not better. Today, the FDA needs to prioritize education and access to less harmful alternatives to reduce smoking rates and menthol cigarette consumption. Without a robust alternative market, a federal menthol ban is almost certain to push menthol smokers into a dangerous underground market where the products’ quality, safety and origin are unknown.

We have a chance to avoid past mistakes and take a more humane, evidence-based approach to tobacco regulation. History has demonstrated that comprehensive bans are dangerously ineffective, and the FDA’s capacity to enforce such a proposed ban, given its failure to enforce the regulations already on the books, appears highly doubtful.

The FDA needs to rethink its strategy or risk making our communities less safe.

• Paris Dennard is a Republican political strategist and communications expert who served as White House director of Black outreach for President George W. Bush.