Five senators recently sent a letter to the Biden administration urging sanctions on Tobacco International Holdings, a Switzerland-registered business, for their “reported ties to Mexico’s Cártel de Jalisco Nueva Generación (CJNG),” which was sanctioned by the United States for trafficking narcotics and fentanyl.
The letter states that the CJNG has been generating revenue from the tobacco market in Mexico, which is valued at $4 billion annually. As the opioid epidemic rages, lawmakers are understandably scrambling to choke off the illicit supply of fentanyl. However, they may unwittingly foster demand for an illegal new market when coupled with efforts to ban menthol cigarettes.
For decades, the primary and often unquestioned response to illicit substances in the United States has been prohibition and incarceration — from cannabis to crack cocaine to opioids. As a result, more people are in jail and dying of overdoses, and the drug supply is the most toxic it has ever been. A rational analysis might conclude that policing human behavior is not the answer, but instead, lawmakers are looking to add menthol cigarettes to the growing list of prohibited substances.
Nearly one year ago, the Food and Drug Administration opened public comments on a proposed ban on menthol cigarettes and flavored cigars, and a final decision is expected this year. The agency posits that the answer to reducing menthol cigarette use is to ban them outright.
To their credit, the agency articulates that enforcement of the ban will be focused squarely on manufacturers and distributors. But enforcement happens at the local level, and all 50 states treat the sale and distribution of illicit cigarettes as a serious crime. In 44 states, the crime is classified as a felony. In 37 states, the crime is subject to mandatory minimum sentences. Mere possession is treated as a crime in 37 states.
These efforts will, in reality, overcriminalize another substance that, while unhealthy, should remain in the purview of public health rather than the criminal justice system. Menthol cigarettes are the preferred cigarette product for 18.5 million smokers, nearly half of all smokers in the United States. Halting supply without readily available alternatives to help smokers quit may force millions to pursue innovative, illegal and potentially dangerous ways to meet this need.
Further, enforcement of such measures overburdens the criminal justice system, diverts police resources from higher priority crimes, and increases contacts between police and their communities, often with negative outcomes.
Menthol cigarettes are the preferred product of Black Americans — the most over-policed population in the nation. Aside from government overreach, this patronizing move doesn’t quite affect White Americans who prefer non-menthol cigarettes; those are still being approved for sale. Instead, to save Black lives, the government is criminalizing substances. Again.
We haven’t learned much about prohibition over the last 100 years. Research has shown that as law enforcement becomes more intense, the potency of prohibited substances and illicit market activities also increases. Take, for example, the recent report by the Multi-Agency Illegal Tobacco Task Force of Massachusetts — the first state to ban flavored tobacco in 2019 — indicating “inspectors and investigators are routinely encountering or seizing menthol cigarettes, originally purchased in surrounding states, and flavored (electronic nicotine delivery system) products and cigars purchased from unlicensed distributors operating both within and outside the commonwealth.”
The prohibition of flavored tobacco did not reduce demand as policymakers hoped. Should this extend across the nation, it would be unsurprising if the “Cartel del Tabaco” — as many Mexicans refer to it — begins to set its sights on entering the U.S. market.
A more nuanced approach to reducing and eventually eliminating cigarette use is tobacco harm reduction. There is a multitude of products that deliver nicotine — the addictive component of cigarettes — without burning tobacco, which produces more than 7,000 chemicals, of which more than 70 are carcinogenic. Nicotine patches and gums are prime examples of this shift, and the fast-evolving marketplace now includes e-cigarettes: all at the lower end of the risk spectrum.
Although not completely safe, these safer products have shown promise in helping smokers kick the habit.
There is bipartisan support for a new approach to drug policy. It is time to include tobacco in that conversation. Otherwise, policymakers are writing a new page for an outdated playbook.
