A menthol cigarette ban would not work

In a 1932 campaign speech, Franklin Roosevelt called Prohibition a “complete and tragic failure” that encouraged “lawlessness … corruption, hypocrisy, crime and disorder …” History proved Roosevelt was correct, and Prohibition was repealed in 1933. One hundred years later, the Biden administration is preparing to finalize a similar action and yet it has provided no plan on how to contain the criminal market that it’s about to inflame.

The FDA’s passage of a national ban on menthol cigarettes is rumored to be imminent — perhaps as soon as August. Since menthols are the preference of more than 20 million smokers nationwide, and represent a market of billions of dollars annually, a menthol ban could be the largest prohibition of a popular adult product in modern American history.

Recent news reports about the explosion of the illicit tobacco market across the United States, and the flood of illegal disposable vapes in kid-friendly flavors being smuggled from China show the danger of tobacco regulation without enforcement. 

Prohibition does not work. Prohibition of popular adult products without a plan to manage the consequences is a recipe for disaster. Yet even as the FDA struggles to police the current tobacco market and fails to enforce the lawless disposable flavored vape market, it’s preparing to add more fuel to the fire in a nationwide menthol cigarette ban.

Tired of waiting for regulators to act, New York City Mayor Eric Adams took matters into his own hands and filed a RICO lawsuit against some of the largest distributors of unlawful vapes. This is exactly the kind of enforcement activity we should be seeing from the government. Until the FDA and state authorities wake up, other municipalities should consider the same tactic. 

Law-abiding retailers in New York know the impact and danger of the illegal tobacco market better than anyone. Convenience stores, bodegas, and gas stations battle the largest criminal tobacco market in the country, a situation fueled by New York's highest-in-the-nation taxes on cigarettes. As a result, gangs and organized crime syndicates smuggle products from lower-tax states into New York and reap millions in profits. More than 60% of all cigarettes sold in New York are sold illegally. 

Bans and taxes on adult products are not an effective public health strategy as they don’t meaningfully change behavior. Restrictions simply push business out of legitimate, taxpaying stores and put it on the street. This is especially true when there isn’t an effective enforcement regime. The international criminal syndicates would use the same networks they use for drugs and other illicit products to traffic menthols. International smuggling rings already import illegal vapes and counterfeit cigarettes from China and Mexico. Those trafficking networks will become more active with a menthol ban.

The hypocrisy Roosevelt spoke of is on full display when you consider the dichotomy of criminalizing menthol cigarettes while giving full-throated support to legalizing marijuana. Social justice advocates and progressive lawmakers have pushed to legalize marijuana both in New York and nationally in part because prohibition didn’t work.

Aggressive bans of popular consumer products without an accompanying enforcement policy would render the policy meaningless at best and dangerous at worst. A menthol ban would fuel an unprecedented criminal market for tobacco, and shutter small businesses from coast to coast. Now is not the time for a new American Prohibition. The FDA needs to go back to the drawing board and get its house in order before it takes on more responsibilities that it can’t manage.

This guest essay reflects the views of Kent Sopris, president of the New York Association of Convenience Stores.