Unintended Consequences

Oppose the FDA's Proposed Menthol Cigarette Ban

Unintended Consequences is a project of the Law Enforcement Action Partnership

Emerging-Illicit-Markets-Related-to-Prohibited-Tobacco-Products

Policies that amount to prohibition have serious racial justice implications.

Menthol Ban Consequence

Multiple prison terms under three-year strikes and other repeat offender statutes

Menthol Ban Consequence

Immediate revocation of parole; immediate return to prison

Menthol Ban Consequence

Voter disenfranchisement in states that remove the right to vote for felony convictions

Menthol Ban Consequence

Deportation, even for people with legally-issued visas

ATTN: The Honorable Robert Califf
℅: Dockets Management Staff (HFA-305)
Food and Drug Administration
5630 Fishers Lane, Rm. 1061
Rockville, MD 20852

Dear Commissioner Califf,

I oppose the FDA’s proposed menthol cigarette ban, and I urge the FDA to reconsider its position. Prohibiting the preferred cigarette choice of Black smokers unfairly targets them and ignores what’s going on between police and communities of color.

Banning the sale of these mentholated cigarettes to adults, 21 and older, will trigger criminal prosecutions across the country (the sale and distribution of prohibited tobacco products is a crime in all 50 states, and in 37 of those, simple possession of prohibited tobacco triggers criminal penalties), increase the occurrence of negative interactions with police within your targeted communities, and likely lead to an increase in incarceration rates, just like in the War on Drugs.

Instead of a top-down approach that ignores community concerns, the FDA should evaluate the impact on our neighborhoods and take community-based health care approaches that are already proven to work for our communities.

I don’t want to see what happened to Eric Garner happen to any of my friends, my family, or any one else in my community.

Thank you for your time and deliberation on this matter.

Join the Conversation

Submit your comments to the FDA by August 2, 2022, 5pm ET

LEAP will submit all comments. Your name (but not your contact info) will be publicly visible.

Dr. Ben Chavis PSA

Gwen Carr PSA

Major Neill Franklin PSA

"No one thinks smoking is a good idea, but as a former drug cop, these bans do not reduce use. We don't need more reasons for police to stop young Black and Brown men. Bans do not work. Public education works to reduce smoking. Let's do what works instead of putting people in handcuffs and endangering lives."

Major Neill Franklin (Ret.) Maryland State Police/Former Executive Director, LEAP

"My family knows only too well what can happen when police enforce tobacco control laws. Black people have already paid too high a price for discriminatory laws."

Gwen Carr Mother of Eric Garner/Founding Member, Mothers of the Movement

"Banning menthols preferred by over 80% of African Americans who choose to smoke is racial profiling because the ban does not apply to cigarettes preferred by white smokers."

Dr. Benjamin Franklin Chavis President & CEO of the National Newspaper Publishers Association

"This ban will continue to perpetuate health and policing disparities in communities of color instead of alleviating either problem. Smoking rates are down across demographics - that wasn't achieved through bans. It was achieved through public education campaigns and proven cessation methods."

Lt. Diane Goldstein (Ret.) Redondo Beach Police Dept./Executive Director, LEAP

The FDA proposed a ban prohibiting menthol as a characterizing flavor in cigarettes. Before this ban was proposed, the Law Enforcement Action Partnership (LEAP), along with a bipartisan coalition of subject matter experts from various civil rights, drug policy, and law enforcement organizations, sent a letter to Secretary Xavier Beccara of the US Dept. of Health and Human Services and Commissioner Robert Califf of the US FDA stating that such a ban would adversely impact people of color and trigger unnecessary criminal penalties.

The idea that we should ban menthol flavored cigarettes, the preferred choice of Black smokers, disregards the tension between police and communities of color.

A regulatory ban on menthol cigarettes will shift these products from the legal, regulated market to the illegal, unregulated market.

A regulatory ban will criminalize the sale and distribution of these products, not only under federal law, but under the law of all 50 states.

The FDA says it won't enforce criminal provisions of the FDA Act, but that doesn't help, because the ban will create an enormous problem under state and federal law.

Criminalizing menthol cigarettes will have a devastating impact on criminal justice reform and undermine harm reduction.