How Biden's Menthol Ban Endangers Black Bodies

D.C. police arrest a black man / Getty Images
May 26, 2022

President Joe Biden's ban on menthol cigarettes will put black communities at risk of more violent interactions with police, according to myriad experts ranging from former law enforcement to left-wing constitutional attorneys.

The Biden administration has made no secret of the fact that targeting menthol cigarettes is meant to change the behavior of the black community, alleging that a ban will help reduce racial disparities in the health care system. Criminalizing black people's behavior, according to the Biden administration, is the best course of action.

"Black smokers prefer menthol products, and the Biden administration's decision to ban menthol cigarettes will inevitably fuel an already well-established, lucrative, and violent illicit market," Richard Marianos, a former senior official with the Bureau of Alcohol, Tobacco, Firearms, and Explosives, told the Washington Free Beacon.  "This will criminalize the behavior of Black communities and lead to more interactions with law enforcement, not less."

Data support Marianos's assertion. The National Survey on Drug Use and Health revealed that nearly 85 percent of black smokers prefer mentholated cigarettes, compared with just under 30 percent of white smokers.

As the Food and Drug Administration moves forward with its policy to outlaw menthols, Biden this week released an outline of his executive order to "advance effective, accountable policing and criminal justice practices." The menthol ban stands in direct contradiction of the new policy, which has a stated goal of stamping out "systemic racism in our criminal justice system and in our institutions more broadly."

"Why in this nation, why [do] so many black Americans wake up knowing they could lose their life in the course of just living their life today?" Biden said at a signing ceremony for his executive order. "Simply jogging, shopping, sleeping at home."

Biden's move to criminalize menthol cigarettes would violate his goals of eliminating disparate impact—supposedly neutral policies that disproportionately affect minority communities—in law enforcement. His executive order calls for disparate impact studies on the use of force by law enforcement and asserts that "fatal encounters with law enforcement have disproportionately involved Black and Brown people."

Such disparate impact is why Biden's menthol ban has earned criticism from left-wing civil liberty activists, such as the American Civil Liberties Union. An attorney for the organization in a letter last year highlighted the irony of such a ban in the wake of George Floyd's death.

"As we approach the one-year anniversary of the murder of George Floyd—only a few years removed from the killing of Eric Garner, a Black man killed by NYPD for selling loose, untaxed cigarettes—the racially disparate impact of the criminal legal system has captured the nation's attention," the attorney wrote. "It is now clear that such policies that amount to prohibition have serious racial justice implications."

Americans agree with the assessment that a menthol cigarette ban will increase criminality. An April survey found that an overwhelming majority of swing-state voters agree with the statement that a "ban on menthol cigarettes wouldn't stop the sale of this product, it would push the product out of legitimate stores and onto street corners where gangs and violent criminals sell and generate profit for organized crime."

As recently as 2020, Democrats such as Rep. Frank Pallone (N.J.) contended that an increase in the illicit cigarette market would mean "communities of color" bearing "the brunt of enforcement." Pallone supported his claim by arguing that blacks are already disproportionately the subject of criminal investigations.

The Free Beacon previously covered Republican plans to use the unpopularity of a menthol cigarette ban in the upcoming midterm elections. Fewer than 32 percent of voters in Nevada, Georgia, and North Carolina support such a policy.

Although Biden's policy seemingly applies only to tobacco products, vaping industry insiders expressed concern to the Free Beacon about future action against non-combustible products such as menthol-flavored Juul pods. The FDA in 2019 announced a plan to eventually ban all non-tobacco-flavored vaping products.

"Federal and state governments are hellbent on outlawing the single most effective and popular smoking cessation method ever devised, nicotine vaping," said Amanda Wheel, president of American Vapor Manufacturers, a leading trade group of the vaping industry. "Police are routinely tasing and arresting people for vaping and the government's engraved invitation to black marketeers is only going to make that appalling injustice far more dangerous."