The FDA is still trying to pass a nationwide ban on menthol cigarettes, but a subcommittee of the House Appropriations Committee recently placed a rider in the FDA’s 2024 funding that would preclude such a ban.
Even with this blockade, the FDA’s proposal is still worrisome as it creates a blueprint for states to take similar actions.
Health and Human Services Secretary Xavier Becerra has boldly claimed that the FDA’s proposed ban on menthol cigarettes “would help prevent children from becoming the next generation of smokers and help adult smokers quit.” But recent studies on the effect of similar state bans suggest this approach won’t effectively lower smoking rates locally — much less nationally.
Legislatures from Hawaii, Indiana, Maryland, New Jersey, New Mexico, New York, Oregon, Vermont and Washington are considering legislation prohibiting the sale of all flavored tobacco products within their states. California, Massachusetts, New Jersey, New York and Rhode Island have already passed legislation prohibiting the sale of some or all flavored tobacco products.
In 2020, Massachusetts became the first state to implement a ban on the sale of menthol cigarettes. The state has seen abysmal results in the three years since the ban was put into action. A 2023 studypublished in JAMA Internal Medicine found that the prevalence of smoking among Black adults in Massachusetts increased from 2017 to 2021 despite the state implementing a ban on menthol cigarettes.
A 2023 study by the Reason Foundation found that after Massachusetts’ ban, the sale of menthol cigarettes increased in surrounding states. This increase suggests that Massachusetts residents traveled out of state to buy menthols in larger quantities for themselves or to redistribute them on the black market. This year, the Massachusetts Multi-Agency Illegal Tobacco Task Force proposed criminalizing the possession of menthol cigarettes to save face.
In an attempt to create a “smoke-free generation,” California is considering banning all tobacco products for individuals born after 2006. This proposal follows the legislature increasing the legal purchasing age to 21 in 2016 and banning the sale of flavored tobacco products in 2020. The ban bill recently passed the state’s assembly and is now being considered by the senate.
Although the FDA does not intend to criminalize the use of menthol cigarettes if its ban proposal passes, experts have warned that state laws regulating the selling and purchasing of untaxed cigarettes could trap individuals who try to buy and sell menthols in the black market. The Tax Foundation found that in 2018 more than 50 percent of cigarettes consumed in New York were smuggled into the state. With so many states passing legislation to ban different tobacco products, the black market will be allowed to flourish, and criminal justice implications will likely follow.
More than 480,000 individuals die annually of cigarettes, and more than $241.4 billion is spent nationwide on tobacco-related healthcare costs. While it’s admirable to reduce the incidence of smoking in America, bans on substances don’t work and create unintended consequences that harm citizens in the long run. We need a better approach to combat smoking addiction.
People won’t be coerced into making positive health changes by any government agency — state or federal. If the FDA wants to reduce the number of smokers throughout the United States, it should invest in harm-reduction programs rather than banking on ineffective prohibition policies. In the case of a nationwide cigarette ban, the FDA wastes its time.
