OPINION: FDA Plan To Ban Menthol Cigarettes Is Another Way For The Feds To Create Crime

Jonathan Haggerty and Arthur Rizer | R Street Institute

America’s experiment with alcohol prohibition created what we know as modern organized crime. Almost overnight, banning booze spawned black markets that fueled the rise of powerful, violent crime cartels across the country. Fifty years later, the war on drugs laid fertile ground for notorious kingpins in Latin America to fight and murder for control of the $100 billion ‘industry.’ But could a ban on menthol cigarettes lead to something similar?

It’s easy to understand why Food and Drug Administration Commissioner Scott Gottlieb recently announced a plan to seek an all-out ban on menthol cigarettes. The minty flavor makes up about a third of America’s $100 billion-plus cigarette market, and there is evidence suggesting that menthol makes it easier for teens to get hooked and harder for adults to quit. A menthol ban will no doubt save lives by reducing smoking initiation. But it could also cost lives.

As with all prohibitions, an ill-conceived ban will come at a cost of violence, an influx of dangerous substitutes, and a strain on law enforcement. FDA officials should carefully consider the potential unintended consequences before banning menthols outright.

The primary purpose of a ban is to reduce smoking rates — a laudable goal. Over 19 million people smoke menthols in the United States. And certainly, cigarettes are not heroin; many people may just give up smoking or switch to unflavored cigarettes if menthols are banned. But researchers have found that to smokers, menthol and non-menthol cigarettes are not close substitutes, suggesting that if banned, many smokers will seek illicit versions of menthols.

Indeed, banning any in-demand product will always create a black market, and every indication shows that a menthol ban would create a big one — potentially a multi-billion dollar one.Consider the history America has with bans. Alcohol prohibition may have reduced drinking rates initially, but it also generated some of the deadliest organized crime syndicates in our nation’s history. Similarly, some research suggests that state laws repealing marijuana prohibition may have increased use among adults, but as legal marijuana has cut into cartel profits, the repeals have also reduced the violence associated with the black market.

In fact, researchers looked at the question of a menthol ban today and came to a stark conclusion: “If enforcement of a ban follows the pattern set by other illicit drug markets … there [will be] more violence.” And the patterns will follow simply because the market for menthols is massive.

Tragically, the black market’s effects could be worst felt in the communities that already experience high crime and incarcerations rates. African American smokers overwhelmingly prefer menthol cigarettes, so it’s likely that a menthol ban would have a disproportionate impact in these communities. In fact, the National Black Chamber of Commerce and the National Organization of Black Law Enforcement oppose a menthol ban, citing concerns that an illicit market could lead to aggressive policing of and enforcement against communities of color. These concerns are not idle ones: In 2014 Eric Garner, an African American, died in police custody after being arrested for selling illicit cigarettes.

The beneficiaries of a ban won’t be Big Tobacco executives or even small-time illicit traders like Garner: Instead, the major gangs that already do business smuggling illegal cigarettes all over the world — a $10 billion underground industry in America — will likely seize a major revenue opportunity.

Banning menthol is also a bad idea from a law-enforcement perspective. A phase-out, similar to the policy approach to leaded gasoline, could give the public time to adjust, seek legal alternatives or quit. But even that option is no guarantee against an illicit market. Given the myriad other problems police are dealing with — including a raging opioid crisis — adding a new front to the war on drugs will further tax their limited resources. Even worse, the profits from a black market would shift potential cigarette tax revenues from law enforcement budgets into the hands of criminal outfits. If even only half of the current menthol market turned illicit, state budgets would lose billions more to gangs.

Perhaps the safest conclusion that one can draw from the past 50 years of public health research is that cigarette smoking is terribly unhealthy. But an outright prohibition on a large segment of the market needs very careful scrutiny. A hastily implemented ban could create a huge black market for organized crime and strain an already taxed justice system. Policymakers have plenty of options to reduce smoking — including taxes, educational efforts and alternative products — without resorting to a ban on a single popular flavor.

Jonathan Haggerty (@JHaggrid) is the Criminal Justice and Civil Liberties Policy Manager at the nonprofit R Street Institute in Washington, D.C. Arthur Rizer (@ArthurRizer) is a former police officer and R Street’s Criminal Justice and Civil Liberties Policy Director.


The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.

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