This year, 45,000 Black Americans will die from tobacco-related illnesses. The same number will likely perish next year, and almost as many the year after that.
Fully 85% of Black people who smoke got hooked on nicotine through menthol cigarettes, which mask the harsh taste of tobacco and other chemicals. Menthol exacerbates both addiction — the cooling effect can decrease the cough reflex and throat dryness — and health problems. Smokers tend to inhale menthol cigarettes more deeply and hold the smoke in their lungs longer, and they are harder to quit.
So when the Biden administration announced in late April that the FDA would begin the rule-making process for banning menthol cigarettes, one might reasonably think that this threat to the health of Black Americans would finally recede.
With some $6.3 billion in annual sales in the United States alone — and a robust annual growth rate of 4.6% — Big Tobacco is not about to abandon the menthol cigarette market without a fight. That isn’t surprising.
What’s surprising is an argument that the industry’s well-resourced lobbyists are using to delay implementation of the menthol ban: social justice. Their claim? There are unintended — even inevitable — social justice consequences to banning menthol cigarettes.
Led by the Rev. Al Sharpton, the tobacco industry is arguing that banning menthol cigarettes will result in more — and potentially more deadly — encounters between police and Black people. Police officers, Sharpton alleges, will see a Black person on the street smoking a cigarette, assume that it is an illicit menthol cigarette, then question the assumed perpetrator and likely harass and arrest them. And then the inevitable: Some of these encounters will turn deadly. Sharpton is quick to invoke the name of Eric Garner who was being questioned for selling “loosies” — single cigarettes — before his deadly encounter with police.
However compelling this social justice-driven argument may seem at first, it is cynically manipulative. It preys on the understandable fears people have of interactions between Black people and the police by suggesting a scenario that not only has no basis in fact but where both the historical evidence and the actual proposed FDA rule argue against even the remote possibility of escalating these interactions.
Let’s start with the proposed FDA rule. The FDA has said that it plans to make the manufacture and distribution of menthol cigarettes illegal — not smoking them. If tobacco companies tried to circumvent the law by illegally manufacturing menthol cigarettes, or slipping foreign-manufactured ones into the domestic distribution pipeline, they could be investigated and held accountable. The federal Bureau of Alcohol, Tobacco, Firearms, and Explosives would probably be empowered to monitor tobacco company compliance. It would not, however, have the jurisdiction, the authority, or any interest in stopping people on the street for smoking menthol cigarettes.
Importantly, local police do not have that authority either. Without an underlying crime, police have no “reasonable suspicion” — the necessary legal justification — to stop or question anyone for smoking. Could a rogue police officer ignore both the law and departmental guidelines to manufacture an encounter? Of course. But the risks to the errant officer, both legal and professional, multiply considerably without the pretext of an underlying crime. And smoking menthol cigarettes simply is not — and will not become — a crime.
No state statutes make smoking a crime, nor can one be conceivably envisioned. Even state laws that prohibit smoking inside restaurants, bars, and offices never made it a crime — or violation — for people who break the rule and puff away indoors. States have reserved fines only for establishments that allow smoking indoors. To suggest otherwise is just plain cynical; a diversion from what will happen: holding tobacco companies accountable.
Yet few people are willing to publicly challenge Sharpton’s narrative. I understand that: It is dangerous to argue against a position that has attached itself — appropriately or not — to a popular social justice cause. (And there is wisdom in the old adage, “Never argue with someone who buys ink by the barrel“: Sharpton has his own TV show.)
It is important, however, to note that Sharpton might be motivated — at least in part — by something other than a sense of social justice: his National Action Network has long accepted funding from tobacco companies.
Encounters between police and Black people for no legitimate reason do happen and unfortunately will continue to happen despite national and local efforts to reform police practices. Some percentage of those encounters will turn deadly. If the number of deaths caused by police officers attributable to the menthol ban were to increase by 20%, almost certainly an overestimate, that would represent an increase of 50 deaths a year, using data compiled by Mapping Police Violence, a source regularly cited by journalists.
Any such death would be tragic. But the number of people who might be stopped by police for smoking is based on a hypothetical that is not supported by law or history. During Prohibition, G-men didn’t arrest people for drinking; they went after the bootleggers.
What is not hypothetical is the fact that cigarettes kill; and menthol cigarettes kill Black people. In 2011, an FDA study estimated that if menthol cigarettes had been removed from the marketplace in 2010, then by 2020 approximately 4,700 Black Americans could have avoided premature death and about 461,000 wouldn’t have started smoking. By 2050, more than 66,000 Black Americans could have avoided premature death, and more than 1.6 million wouldn’t have started smoking.
Sharpton’s argument of unintended consequences may be heartfelt — his acceptance of money from tobacco companies notwithstanding. But it is not just hypothetical but contradicted by historical evidence, political realities, and the rule of law.
It is time for all people who care about social justice and health care equality to say to Big Tobacco: Have you no shame? Stop the delaying tactics.
Steve Cohen is an attorney at Pollock Cohen LLP, which represented the health advocates whose lawsuit forced the FDA to ban menthol cigarettes.
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