As feds push menthol cigarette ban, states weigh broader measures

New York Assembly member Rodneyse Bichotte Hermelyn inherited a love of music from her father, legendary Haitian big band jazz musician Marcel Bichotte. But she doesn’t want to end up dying at 73 from lung and throat cancer, as her dad did, likely because he chain-smoked menthol cigarettes.

Before her political career, Bichotte Hermelyn was a singer who once performed at Carnegie Hall with her all-city chorus in high school. But her dad’s early death, and the passing of her mother this spring at 82 of congestive heart failure linked to smoking, has nurtured a new passion — ending the sale of all flavored tobacco products.

“My aunts are in their 90s,” Bichotte Hermelyn said in a phone interview. “We have the genes to live long, but we didn’t.”

At least eight states are considering legislation this year that would ban sales of all flavored tobacco products, including cigarettes, cigars, vaping products and smokeless tobacco such as snuff or chew. But critics say the proposed bans on menthol cigarettes could prompt police to target Black adults, who disproportionately use menthol tobacco products.

The state measures also have hit turbulence after the federal Food and Drug Administration announced in April that the agency would move within a year to ban the sale of menthol cigarettes and flavored cigars. While backers of the state legislation say the federal move boosts the momentum for bans, opponents from the tobacco industry now argue that since the FDA is set to take action, states don’t have to.

Sponsors of the state bills note the measures would go further than the proposed FDA rule by banning other flavors and other tobacco products, not just menthol cigarettes and flavored cigars. They also contend that the FDA rule could be delayed by court challenges, while new state laws would be more immediate.

“The federal move helps,” Bichotte Hermelyn said. “It would do [some] of what we’ve been trying to do.”

But Thomas Briant, executive director of the National Association of Tobacco Outlets, an industry group, testified last week before the Maine legislature, which is also considering a broad flavored tobacco ban, that it should hold off because of the impending FDA rule.

“With such a wide sweeping regulation being proposed, the Maine legislature should pause and allow the FDA to proceed with its proposed rule which focuses on some of the same flavored tobacco products that would be prohibited under the terms of [the Maine bill],” he said.

In California, a similar ban was set aside pending a referendum in November 2022 on whether it should be scrapped. The law was scheduled to go into effect Jan. 1, but a massive petition drive, spearheaded by tobacco interests, forced the repeal onto the ballot.

The New York bill, as well as many of the measures in other states, would prohibit the sale of tobacco flavored with “any fruit, chocolate, vanilla, honey, candy cocoa, dessert, alcoholic beverage, mint, wintergreen, herb, spice, or menthol or any concept flavor that imparts a taste or aroma that is distinguishable from tobacco flavor.”

Similar legislation is under consideration in Hawaii, Indiana, Maine, Maryland, New Mexico, Texas and Vermont, all of it introduced by Democrats.

Last year, the FDA banned most flavored pods for single-use e-cigarettes in an effort to stop underage vaping. But adults are still able to purchase vaping devices with certain flavors. Some manufacturers claim that vaping flavored e-cigarettes helps regular tobacco smokers quit, but the federal Centers for Disease Control and Prevention has said research is inconclusive.

A study published in the New England Journal of Medicine found e-cigarettes were “more effective for smoking cessation than nicotine-replacement therapy, when both products were accompanied by behavioral support.”

Bichotte Hermelyn and other supporters of the menthol bans say the efforts specifically can benefit the Black community, which disproportionately uses menthol-laced tobacco products such as Kool and Newport cigarettes.

According to the Centers for Disease Control and Prevention, menthol cigarettes are most popular among non-Hispanic Black adults. In 2014-2015, 76.8% of non-Hispanic Black adults who smoked usually used menthol cigarettes, compared with 34.7% of Hispanic adults and 24.6% of White adults, the CDC reported.

But others worry that a ban could have unintended consequences for Black people.

Washington Post columnist Eugene Robinson, who is Black, recently argued that banning menthol cigarettes would give law enforcement officials another excuse to stop Black people on the street, as in the 2014 case of Eric Garner, who was killed by New York City police officers after he was held on suspicion of selling single cigarettes outside of a pack, which is illegal.

“Would the new rule give police a mandate to crack down on the sale of ‘loosies’ — single cigarettes — to make sure menthols aren’t reaching smokers even one at a time?” Robinson wrote. “More to the point, wouldn’t the menthol ban give authorities a new reason to target the average Black person, minding his or her business and smoking a cigarette, for alleged illicit activity, all the while making sure that the average white smoker isn’t suspected of doing the same?”

During a similar debate about banning menthols in New York City in 2019, the Rev. Al Sharpton also made that argument, according to the New York Post. He lobbied hard on the issue and was one of many reasons the city bill failed, according to Bichotte Hermelyn.

The American Civil Liberties Union has come out against menthol bans on similar grounds.

“There are serious concerns that the ban implemented by the Biden administration will eventually foster an underground market that is sure to trigger criminal penalties which will disproportionately impact people of color and prioritize criminalization over public health and harm reduction,” Aamra Ahmad, senior legislative counsel at the ACLU, said in a statement.

But Phillip Gardiner, a public health expert and co-chair of the African American Tobacco Control Leadership Council, a nationwide group based in California, said the fears are unfounded.

He said he is not aware of any person who has been arrested for having a menthol cigarette in their possession in places such as Massachusetts and dozens of smaller jurisdictions that have banned their sale. “It’s not about possession, period. It’s about manufacture and distribution.”

“We think the FDA doing something — after it didn’t do anything for a decade — is a positive step forward,” he said. “We cannot take our foot off the gas; we have to continue the fight at the state and local level.”

State lawmakers say they will continue pushing their bills to ban flavored tobacco — no matter what the FDA does.

Vermont state Sen. Virginia “Ginny” Lyons, a Democrat whose bill is under consideration this year, praised the FDA and said she thinks it will “give a boost to this bill and bring some folks around.

“My bill covers all flavors, all tobacco products and all vapes,” she said in a phone interview. “No loophole left.”

Gardiner said tobacco companies are not going to stop pushing flavored tobacco products unless forced to.

But George Parman, a spokesperson for Altria, one of the nation’s largest tobacco companies, said the industry will fight such bans.

“Prohibition is not the answer and will lead to serious unintended consequences,” he said in an email. “We oppose total legislative flavor bans on tobacco products because such bans can create new criminal markets that operate outside the regulatory system.”

He said state laws can also result in removal of products from the marketplace “that the FDA has concluded are appropriate,” such as some vape products touted by manufacturers as smoking-reduction devices.

Opponents also point to losses in tax revenue if menthol cigarettes are banned, using Massachusetts, which banned flavored tobacco in 2019, as a case study.

Sales of tax stamps, which prove that a vendor has paid tax for a product, declined in Massachusetts by 24% between June and September of 2020, compared with the same period in 2019, found Ulrik Boesen, a senior policy analyst with the Tax Foundation, a think tank that favors broad taxes over product-based levies. But at the same time, tax stamp sales increased in bordering states such as Rhode Island and especially New Hampshire, going up by 25% and 34%, respectively, according to his paper.

“I would caution other states,” he said in an email. “What has happened in Massachusetts, is, at least in the short term, not a great public health benefit. The figures indicate that smokers have simply changed where they purchase menthol cigarettes. This is a bigger risk for smaller states and localities where access to the products is never far away.”

But the Tax Foundation numbers show that while many smokers would travel to another state to get their preferred flavor, not all would.

If the FDA enacts a nationwide ban on the sale of some flavored tobacco products, it would shrink state tax revenue across the board without picking winners and losers among the states, Boesen said. However, the ban wouldn’t eliminate the illicit flavored tobacco market, he noted.

Cities and smaller jurisdictions that are trying to pass ordinances banning flavored tobacco products also have run into opposition, sometimes from small convenience store owners that rely heavily on tobacco sales.

The City Council in Kansas City, Missouri, late last year defeated a proposed ordinance for that very reason. Opponents there also said that a crackdown on certain kinds of cigarettes seemed hypocritical, since Missouri had just legalized medical marijuana, even though tobacco harms human health without providing any of the health benefits attributed to marijuana.

Council member Heather Hall, who voted against the ordinance, doesn’t see it that way. She said in a phone interview that she opposes smoking in any form. “I don’t think anyone should smoke to begin with,” she said. “But we just voted for medical marijuana in Missouri. We’ll let you smoke all the dope you want but you can’t have a flavored cigarette? That’s crazy.”

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