Comment: Guy Bentley – The ban on menthol is the prohibition of modern times


The Food and Drug Administration’s announcement of a ban on menthol cigarettes spawned one of the strangest political alliances in recent memory.

Civil rights and social justice groups such as the American Civil Liberties Union are lining up with law enforcement organizations, libertarians and conservatives in criticizing the attempt to enact one of the most important for decades.

So far, lobbyist litigation has put enough pressure on the FDA to push forward a policy that was explicitly rejected by the Obama administration just over a decade ago.

The rationale for the ban is based on two assumptions. The first is that menthol cigarettes pose a greater threat to public health than their non-menthol counterparts, especially to black Americans. The second is that banning menthol will not produce a significant illicit market and result in more interactions between cops and minorities.

On the public health side, the evidence does not support the prohibitionist position. Most black smokers indeed use a menthol-based product. But black adults are no more likely to smoke than whites, who primarily use non-menthol cigarettes. Second, black youth are less likely to smoke than their white peers. The majority of young people who smoke, which is fortunately small, use cigarettes without menthol. Research consistently shows that menthol smokers tend to smoke fewer cigarettes per day than menthol non-smokers.

A study published by Reason Foundation found that states with higher menthol cigarette consumption than all cigarettes have lower smoking rates among children. Several studies have shown that menthol cigarettes are not in themselves more deadly than non-menthol cigarettes, with menthol smokers tending to live longer than other smokers, possibly due to lower consumption.

If menthol cigarettes were particularly appealing to young people and more addictive than other cigarettes, we should see more young menthol and menthol smokers using more cigarettes. In reality, the opposite is true. The greater burden of death and illness from smoking results from cigarettes without menthol.

Prohibition supporters insist that banning a product used by millions of people will not produce any of the deleterious effects we see in other illegal markets such as drugs. This claim is based on the fact that the rule only prohibits the manufacture, sale and distribution of menthol. Users will not be criminalized and the FDA will not send agents to the streets to interview menthol smokers. This point is both true and irrelevant.

The Volstead Act did not criminalize the purchase or consumption of alcohol, but was disastrous. States, not the FDA, will determine how to enforce a menthol ban. It is simply not tenable to claim that this ban will stop millions of menthol smokers without any major enforcement against illicit markets.

Speaking to the Atlanta Journal-Constitution in 2008, Campaign for Tobacco Free chairman Matthew Myers explained why he opposed the ban on menthol cigarettes. “If you immediately take a product off, with so many people using and dependent on it, you can’t say for sure what the reaction will be.” Myers went on to warn that such a ban could lead to illegal trafficking. A document from the group said menthol should not be immediately banned as it “would have a negative impact on public health.” Myers continues to lead the group and is now one of Prohibition’s strongest supporters.

A report on the US illicit tobacco market compiled by the National Academies of Science, Engineering, and Medicine examined the possible effect of a menthol ban. The report hypothesized that most menthol users would switch to non-menthol cigarettes, but “… heavy smokers were more likely to report that they would look for menthol cigarettes in the illicit market.” Menthol bans in Canada and the EU have seen most menthol smokers switch to regular cigarettes, but a significant proportion still obtain menthol products through illicit means.

Whether it’s alcohol, gambling, or marijuana, the arguments for prohibition are always tempting, especially when coated with the promise that previous failures will not be repeated. These promises still do not materialize.

Despite so many failed experiments with one of the worst political tools of the past 100 years, there will always be a clique of people willing to try again.

Unfortunately, the FDA became the vehicle for yet another ban experiment.

Guy Bentley is Director of Consumer Freedom at the Reason Foundation. He wrote this for

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