When we looked at the FDA’s expected ban of menthol cigarettes earlier this week, I raised several questions about both the efficacy of such a plan in terms of promoting better health and the way that the subject immediately became the focus of racial controversy. Thus far, the only arguments I’ve heard in terms of the health benefits of such a ban seem like fairly weak tea. But when it comes to the racialized nature of the debate, it turns out that I wasn’t the only one who found the descriptions being used to be offputting. The American Civil Liberties Union has already weighed in on the subject, saying that the menthol ban will “disproportionately affect communities of color.” While I tend to agree that turning this into a race-based argument seems to be silly at a minimum and potentially offensive, I’m not sure that the ACLU is coming at this question from the same perspective as I was. (Daily Wire)

The Biden administration is expected to announce a proposal to ban menthol cigarettes later this week, a move that some groups have been wanting for a long time, while others say it will lead to more incarceration and negatively impact communities of color…

The American Civil Liberties Union (ACLU) and other groups sent a letter to the Biden administration earlier this week, pushing back against a potential ban on menthol cigarettes. The groups said that such a move would “Disproportionately Impact People and Communities of Color, Trigger Criminal Penalties, and Lead to Negative Interactions with Law Enforcement.” The letter pointed to the cases of Eric Garner, Michael Brown, and George Floyd as situations where cigarettes were involved, adding that “well-intentioned efforts to continue to reduce death and disease from tobacco products must avoid solutions that will create yet another reason for armed police to engage citizens on the street based on pretext or conduct that does not pose a threat to public safety.” The groups argued that a ban on menthol cigarettes “would disproportionately impact communities of color, result in criminalization of the market, and exacerbate mass incarceration.”

At first glance, I was under the impression that the ACLU was saying that removing menthol cigarettes from the market would produce a racially disproportionate effect on Black communities because the FDA would be taking away a product that’s overwhelmingly popular among smokers in communities of color. That would be a rather odd argument because you would, in effect, be saying that the proposed rule would deprive Black people of a greater opportunity to come down with cancer. But reading through their letter, that’s really not what they’re saying.

The ACLU’s claim is that the proposed ban would criminalize yet another non-violent activity, increasing police interaction with the Black community further. They go so far as to invoke the names of George Floyd and Eric Garner. While the group is coming at it from a different angle, that’s really not all that different from the enforcement question I raised in my previous article. As soon as you ban those brands of cigarettes, a black market will immediately emerge for people to import menthol cigarettes, probably from Mexico, and sell them illegally. (Canada banned methol cigarettes years ago.) That means that somebody is going to have to enforce the ban and arrest people who are smuggling the cigarettes and issue tickets to the people in possession of a pack.

Would that result in more use-of-force encounters between police and minorities? I suppose it’s hard to argue against the idea too much. Repeated surveys have shown that among all smokers, menthol is the flavor of choice for 85.8% of Black smokers, 46% of Hispanic smokers, and 39% of Asian smokers. By comparison, only 28.7% of white smokers buy them. And it wouldn’t take long for this black market activity to pop up. As we’ve covered here in previous years, there is already a thriving illegal community of tobacco pirates operating in the United States.

Since the ACLU has already brought up Eric Garner, remember that his fatal encounter with the NYPD took place when he was selling loose cigarettes on a street corner. This ban would simply cause tobacco pirates and people like Garner to prioritize the banned products in their stock and ramp up their sales capacity. Such activity is currently being done to avoid the massive sin taxes imposed on tobacco products in many states, but this new illegal activity would move menthol smokes into the same criminal niche that marijuana used to occupy.

Of course, none of this information may prove sufficient to change the mind of the FDA if they are set on doing this. Lawsuits from the cigarette manufacturers might slow things down if they manage to get an injunction, but it sounds like the sort of fight that the government will win in the end.