On April 28, 2022, the US Food and Drug Administration (FDA) proposed new product standards that would ban menthol in cigarettes, and all flavors other than tobacco in cigars. According to the FDA menthol’s minty taste and aroma make smoking more appealing. In addition, the interaction of menthol and nicotine in the brain makes nicotine more addictive.

According to the FDA, this move could have a significant impact on reducing smoking-related death among Black Americans. It’s estimated that of the nearly 18.6 million smokers of menthol cigarettes in the US, 85% are Black. Cigarette manufacturers have often targeted Black Americans and Black communities with advertisements for menthol cigarettes, and menthol cigarettes remain the preference among Black Americans.

However, many organizations focused on racial justice and systemic racism in policing are concerned that a ban on menthol cigarettes could have even more significant impacts on racial policing practices and disparities in the criminal justice system.

“While NAN supports the FDA’s efforts to reduce tobacco-related disease and promote public health, we are very concerned about the negative impact a menthol ban would have on African Americans, at-risk youth (i.e. Black and Hispanic males) and other underserved populations,” said Rev. Al Sharpton, Founder and President of the National Action Network in a letter to Biden administration officials.

“Banning the legal sale of menthol cigarettes through licensed businesses will lead to illegal, unlicensed distribution in communities of color, trigger criminal laws in all 50 states, increase the incidence of negative interactions with police, and ultimately increase incarceration rates,” said the Law Enforcement Action Partnership (LEAP), a bipartisan coalition of police, prosecutors, judges, corrections officials, and other law enforcement officials that advocate for criminal justice and drug policy reform in a letter to congress and FDA officials. “There are far better solutions for reducing menthol cigarette use than criminalizing these products and turning the whole issue over to the police.”

Of biggest concern is that the FDA has said that it will not enforce the cigarette ban against individual consumers – “These proposed regulations do not include a prohibition on individual consumer possession or use,” said the FDA announcement. However, LEAP notes that means that the problem of illegal market cigarettes will be left to state and local law enforcement to deal with. In 44 states in the US, the sale of illicit cigarettes is classified as a felony. In 37 states, sellers of black market cigarettes are subject to mandatory minimum sentences – and in 37 states simple possession is a crime.

“Our fear is that banning the manufacture and sale of menthol cigarettes will not stop their production or purchase but will instead open the floodgates for smuggling and for people living outside of our communities to offer members of our communities another forbidden and valuable item on a platter of illegal substances already plaguing our neighborhoods,” said Mothers of the Movement, a nonpartisan group of women whose Black children have been killed by police officers or by gun violence.

The consequences for someone arrested for a menthol cigarette-related crime might face include:

• Multiplied prison terms under three-strikes and other repeat offender statutes
• Immediate revocation of parole and, thus, immediate return to prison
• Disenfranchisement in the states that remove the right to vote for felony convictions
• Deportation, even for persons with legally issued visas

According to the Innocence Project New Orleans, Black men and boys are five times more likely to be jailed following arrest than white boys and men of the same age. Their average pre-trial incarceration period is 5.5 months – more than long enough to disrupt their access to employment, housing, and other necessary-for-life services.

“The FDA’s proposed rule prioritizes criminalization over public health and harm reduction,” says Innocence Project Director Jee Park. “We strongly encourage the FDA and policymakers to address health needs of marginalized communities and families without threatening the progress we have begun making in the criminal legal system.”