On Thursday, The Wall Street Journal reported that the Biden administration is moving forward on a proposed nationwide ban on menthol cigarettes. While federal agencies have legitimate public health interests in encouraging cigarette users to quit smoking, they must balance those interests against numerous other consumer and taxpayer concerns. NTU will closely monitor this proposed regulation and the public reaction, but we are concerned about the sweeping nature of the potential ban and what this move portends for future regulatory action on nicotine products.
NTU has previously written about state-based efforts to ban menthol cigarettes, and we have pointed out that when Massachusetts banned menthol cigarettes consumers flocked across state borders to purchase those same products in other states:
“In fact, when the Commonwealth of Massachusetts implemented a menthol cigarette ban last year, many individuals simply purchased the same products in neighboring states where such a ban did not exist. According to an analysis by the nonpartisan Tax Foundation, they found that while cigarette sales dropped statewide, sales skyrocketed in states that border Massachusetts, including New Hampshire that experienced a 34 percent increase in sales.”
One concern with a nationwide regulatory ban on menthol cigarettes is that it would potentially allow an underground economy for those products to fester. The Journal wrote on this dynamic in their piece on the proposed ban, noting that Black community leaders have argued “menthol bans would expand the illicit market for cigarettes and lead police to racially profile Black smokers.” Fiscal consequences would also arise, on both the revenue and expenditure sides of the government’s ledger.
Few would argue that the Food and Drug Administration (FDA), Centers for Disease Control and Prevention (CDC), and other public health experts have a role to play in encouraging a reduction in smoking, but Massachusetts’s experiment with a ban and the concerns of community leaders outlined above should at least give the FDA pause as they consider this proposal.
Of potentially greater concern to consumers is if this move is but the first step in a broader effort to ban all menthol-flavored nicotine products, including ones that help some smokers quit, such as e-cigarettes. Previous legislation in Congress would have prohibited “all flavors of tobacco products, including menthol.” As NTU wrote of that legislation:
“In their attempts to kick their tobacco habit, adult tobacco smokers typically start with tobacco flavored e-liquid, but research indicates many end up switching to more fruity or sweet flavors. Cracking down on the ability for legal-age buyers of flavored e-cigarettes will limit access to less harmful alternatives that could potentially save hundreds of thousands of lives each year.”
In fact, the FDA has contemplated banning menthol-flavored e-cigarettes before. While the proposed rule reported on Thursday would not affect e-cigarettes, consumers should be very concerned if FDA efforts expand to products that may help many more smokers quit. Ill-considered regulations have a way of proliferating, especially when fueled by policy agendas that don’t prioritize patient, thoughtful cost-benefit analysis.