Banning Menthol Cigarettes Will Do Nothing to Promote Racial Justice

Public support for the War on Drugs has never been lower, due in no small part to increased awareness about the devastation drug criminalization causes, particularly for people and communities of color. Yet, when Food and Drug Administration (FDA) announced plans last month to outlaw the sale of menthol cigarettes—the type of cigarette black smokers overwhelmingly prefer—supporters declared it a victory for racial justice and equity. In truth, the push to outlaw menthol cigarettes has little to do with racial justice.

Cigarette smoking is a dangerous habit. And, though fewer Americans than ever currently smoke, the benefits of that decline haven’t been equally distributed. In many populations, the prevalence of smoking is twice that or more of the national average, like indigenous Americans, those living in poverty, residents of rural communities, homeless people, and individuals with mental health or emotional challenges. Some groups, like black Americans, also suffer disproportionately high levels of smoking-related illness and death, despite smoking at similar or even lower levels than other groups. Menthol cigarettes, anti-tobacco advocates argue, are at least partly to blame for such disparities, thus banning their sale will help.

By some estimates, up to 85 percent of black smokers choose menthols—compared to just 30 percent of white smokers—so the push to prohibit their sale on racial justice grounds might have some merit, were there credible evidence that menthol cigarettes caused greater harm than non-menthols. But there isn’t. Decades of research fail to substantiate claims that menthol cigarettes are more attractive, easier to smoke, more addictive, harder to quit, or more toxic to health than non-mentholated cigarettes. Furthermore, though tobacco companies almost certainly have targeted the marketing of menthols at black consumers—which might be one reason menthols are more popular with black smokers—it doesn’t appear to have caused higher smoking or smoking-related health disparities. 

For one thing, the proportion of black adults who smoke is roughly the same as the proportion of white adults who smoke, although black smokers tend to initiate their smoking at a later age and smoke fewer cigarettes throughout the day compared to white smokers. Black youth aren’t more likely to smoke than other youth, with the prevalence of cigarette smoking among black students substantially lower than those in all other ethnic groups. And menthols don’t appear especially appealing to the 1.5 percent youth who do smoke, with 60 percent of high schoolers and 65 percent of middle schoolers who smoke reportedly choosing non-mentholated cigarettes.

Another claim often made is that menthol cigarettes are more addictive or harder to quit. Though some studies found lower quit rates among menthol smokers, differences in cessation vanish when researchers account for other factors that influence the likelihood that smokers will attempt and succeed in quitting, like income and education.

There is also no evidence that menthol cigarettes are more toxic or harmful to health, something even the Centers for Disease Control and Prevention and Prevention—until very recently—admitted on its website, noting that menthols “are just as dangerous as non-menthol cigarettes” (though this language was removed soon after FDA’s announced menthol ban). In fact, some studies have found menthol smokers are less likely than non-menthol smokers to develop certain smoking-related diseases, like lung cancer, though this is likely due to the lower number of cigarettes menthol smokers tend to consume. What all of the evidence suggests is that menthol cigarettes, have little, if anything, to do with ongoing racial health disparities.

More likely, such disparities stem from broader forms of social, economic, and political inequalities. For example, people who report higher levels of stress, feelings of being stigmatized, and instances of racial discrimination are more likely to smoke and less likely to quit. Smokers who are economically disadvantaged are also less likely to have the resources necessary to find, utilize, and afford adequate care, reducing their chances of successfully treating smoking-related illnesses.

Furthermore, minority groups (racial or otherwise) also have less political power, which means their needs receive less attention. That might explain why the debate over e-cigarettes, has fixated on the small and mainly hypothetical risks such products might pose to “the youth” instead of the very real and life-saving benefits that lower-risk substitutes for smoking would almost certainly have for the millions of adults—primarily in marginalized groups—who still smoke. Outlawing the sale of menthol cigarettes won’t solve any of those lingering systemic forms of bias. In all likelihood, it will many of them worse. 

A key argument made by menthol ban supporters is that a ban will benefit black people most because they will be more motivated to quit smoking when they can no longer legally obtain their cigarette of choice. They are so convinced of this that they refuse to discuss the possible downsides of criminalizing yet another substance associated with people of color. Instead, they brush off fears that the ban will lead to the sorts of discriminatory policing caused by every other drug prohibition as nothing more than Big Tobacco rhetoric aimed at protecting its profits. But, it isn’t just Big Tobacco raising these concerns. 

Civil rights groups, like the ACLU, criminal justice and drug policy reformers, families of victims of police brutality, law enforcement groups, and harm reduction advocates have come out against the menthol ban. While they certainly don’t disagree that smoking is dangerous, they argue that outlawing menthol cigarettes will do more harm than good. Instead of promoting smoking cessation, they fear the ban will increase illicit cigarette sales, lead to more over-policing in minority communities, and set the stage for more violent interactions between people of color and law enforcement.

Even anti-tobacco groups, like the Campaign for Tobacco-Free Kids, once shared these fears and opposed a menthol ban because they knew it would increase illicit tobacco sales. And, given our country’s history of discriminatory enforcement of both drug and tobacco laws, such fears seem justified. At the very least, they deserve serious public discussion. But, that isn’t happening.

Even in the unlikely event that the ban prompted the large decreases in smoking that proponents predict, it still wouldn’t obviate the need to consider its potential downsides. But anti-tobacco advocates have no interest in genuinely considering the negative impact a menthol ban could have on the very people, communities, and causes they claim to care about.

For example, they repeatedly respond to questions about the ban’s criminal justice implications by claiming that the FDA won’t take enforcement action on individual consumers, only the businesses involved in illegally producing, transporting, or selling menthol cigarettes. But such arguments don’t address how other federal agencies, state authorities, and local police might choose to enforce this ban or how they might respond to the spike in illicit tobacco sales the ban will almost certainly cause. 

Currently, menthol cigarettes make up over a third of legalcigarette sales in the U.S. It is highly unlikely that outlawing their legal sale will make that demand disappear. Instead, menthol smokers who don’t want to quit smoking entirely and don’t want to switch to equally harmful non-menthol cigarettes will seek out non-legal sources for menthol cigarettes. With the illicit tobacco trade already rampant throughout the country, that won’t be much of a challenge.

Bootlegged cigarettes are big business in America, particularly in high-tax states like New York (where over 60 percent of cigarettes sold are illicit) and even more so in low-income neighborhoods, like Harlem and the South Bronx (where over 80 percent of cigarettes consumed come from illicit sources). Eliminating legal sales of menthol cigarettes will only drive more consumers into these underground markets, marking them larger, more accessible for both adults and minors (since street dealers typically don’t verify their customers’ age), and make the problem more visible. When that happens, it will likely be the same groups currently promoting a menthol ban on racial justice grounds who will begin pressuring authorities to crack down on violators. 

For a glimpse of this future, one need only look at what the Campaign for Tobacco-Free Kids (CTFK)—a leader of the anti-tobacco movement—offered in 2018 on strategies for reining in the illicit tobacco market. Among other things, CTFK recommends increasing the number of “agents looking for illegal sales,” expanding the definitions of illegal activity, reducing thresholds for prosecutions, and making penalties for violators harsher, including bigger fines and longer prison sentences for those found guilty and the seizure of money, cars, and even homes of suspected violators. CTFK states: “If the consequences of getting caught are worse and the potential for getting caught higher then potential violators might think twice.”

This is from a group that signed a statement in 2020, along with many other anti-tobacco groups, on the need to decriminalize tobacco in order to address “systemic racism in the enforcement of commercial tobacco control.” But it is entirely consistent with the anti-tobacco movement’s practice of exploiting buzzwords and hot topics to advance their cause. It is also consistent with the tradition of favoring “gentler” public health approaches for substance use issues viewed as primarily affecting white suburban communities, while at the same time advocating for harsher, criminal laws on everyone else.

Prohibition, sky-high taxes, and other punitive tactics aren’t the only way to promote smoking cessation. Another approach would be to adopt policies rooted in harm reduction, such as encouraging smokers to switch to lower-risk alternatives, like e-cigarettes, snus, or heated tobacco products. If the FDA would approve mentholated versions of these less harmful substitutes, it would give menthol smokers who don’t wish to quit a safer and legal option without causing the damage created by criminalization (and would mitigate illicit menthol cigarette sales if they were banned).

Similar strategies have been successful and widely embraced when it comes to other issues, like legalizing cannabis, offering clean needles to intravenous drug users to prevent the spread of disease, opioid replacement therapy, and naloxone distribution to prevent overdose. But the anti-tobacco establishment continues to reject harm reduction for tobacco, seemingly unwilling to accept anything other than total abstinence from nicotine. In fact, these groups’ advocacy is a major reason why the FDA has not approved a single e-cigarette flavored to taste like menthol (or any other flavor besides “tobacco”) and likely never will, in spite of all the evidence that such products are relatively safe, effective for smoking cessation, and can vastly improve the health of smokers who use them as a substitute for combustible cigarettes. 

Anti-tobacco activists have only recently adopted the language of “justice,” even thougk the policies they advocate are already leading to discrimination and police violence. But, the campaign to criminalize menthol cigarettes looks far less like racial justice than it does racial subordination. As described by Roy L. Brooks in his book, The Racial Glass Ceiling, racial subordination is “any act that ignores or discounts matters of keen importance for racial advancement for the sake of pursing an important (nonracist) matter.”

Few would disagree that reducing the death and disease caused by smoking is an important goal. But, is it so important that we should criminalize menthol cigarettes despite the  harm it might do to people of color, as well as the ongoing efforts to advance racial, social, and economic equity? Anti-tobacco advocates seem to believe so. But that’s because they seem to care more about advancing their anti-smoking agenda than about the health, wellbeing, and political priorities of people of color.