The Worcester Telegram in Massachusetts recently polled 165 of its online readers, asking “Do you favor a ban on flavored tobacco products?” The results were fifty-fifty. With the Bay State on the verge of becoming the first state to ban menthol cigarettes and other flavored tobacco products, perhaps citizens and lawmakers should consider all of the ramifications that a drastic prohibition could produce.
Prohibitions of intoxicating substances are present throughout America’s history. In the states, laws to regulate and ban drugs were implemented as early as the 1800s. The Smoking Opium Exclusion Act in 1909 was the first federal law to ban the possession, importation and use of a drug.
Each generation of politicians has found a new substance to ban. From alcohol prohibition in the 1920s to the Controlled Substances Act and the criminalization of marijuana later in the 20th century, our country has always loved to dictate what substances Americans can legally use.
Unsurprisingly, most if not all of these bans have been racially motivated.
For example, the Smoking Opium Exclusion Act only criminalized a specific type of opium smoking favored by Chinese immigrants; it did not criminalize the medicinal opium that many white Americans kept in their medicine cabinets. San Francisco had already outlawed public opium dens in 1875, and many other communities with Chinese settlements followed suit.
Now San Francisco is at the forefront of prohibition again. In summer 2018, the city decided to ban the sale of menthol tobacco products and all other flavored tobacco products. Retailers have been facing the brunt of enforcement actions from the city, but in light of past prohibitions, it is not difficult to imagine that police officers will use the distinctive smell of a burning menthol cigarette to detain a person for information about its sale. That interaction with a police officer can snowball into further involvement with the criminal justice system.
Pieces of legislation aimed at banning menthol-flavored tobacco products are unnecessary governmental regulations that will harm the public. Furthermore, laws that ban menthol-flavored tobacco products target specific and mostly marginalized groups of people.
Over 88 percent of African-American smokers prefer menthols to unflavored cigarettes, and they comprise around 30 percent of the overall menthol market.
While proponents argue that a ban could encourage menthol smokers to quit cold-turkey, another possible outcome could be extremely dangerous—the creation of an illicit market. If this happens, illegal sales of menthol cigarettes will likely be concentrated in communities of color, leading to a greater police presence and citations, fines and arrests for simply attempting to purchase a product that for the past 50 years has not been illegal.
Prohibition leads to overcriminalization, which can lead to further turmoil in our already struggling criminal justice system. Instituting bans on flavored tobacco products, specifically menthol products, can lead to increased community violence, an influx of dangerous substitutes and strain on law enforcement—all of which negatively impact public health.
As cities debate implementing tobacco flavor bans, it is important to make note of the past. Failing to consider how prohibitions have had a negative impact on marginalized communities does a disservice to those communities and the police officers tasked with enforcing the law. Hopefully, lawmakers will remember the disastrous consequences of past prohibitions as they consider these new proposals.
