Dickinson: Criminalizing popular consumer products not an answer

The Food and Drug Administration’s recent proposal to ban menthol cigarettes is yet another example of public health policy that, although couched in well-meaning intentions, is ultimately misguided and potentially harmful.

The Biden Administration claims that this proposal is a necessary public health measure, specifically for minority communities, who consume menthol cigarettes at disproportionate rates.

Virtue signaling may be effective campaign messaging, but if COVID taught us anything, it’s that public health policy mixed with partisan politics is a recipe for disaster.

Of course, we can all agree that addressing health challenges unique to our communities, and protecting consumers, are vital roles of both federal, state and local governments. Ironically however, the unintended consequences of this proposal will compromise our ability to do so.

A recent memo from several Democratic members of congress highlight the severe budgetary impact of this proposal: annual losses of $4 billion in federal revenue, along with a staggering $11 billion in state government revenue.

The impact of these losses can not be understated; in Arizona, revenue from cigarette excise and MSA payments are allocated towards specific programs. In fact, 90% of this revenue goes toward health care, Medicaid and education. As costs across all sectors skyrocket due to raging inflation, kneecapping the state’s ability to meet the needs of its constituents is foolhardy at best and dangerous at worst.

Proponents of the proposal may explain away the pitfalls of this lost revenue by highlighting the immense health benefits associated with a decrease in cigarette smoking. If true, that would indeed be a worthwhile trade off.

However, one look at the effects of Massachusetts current menthol ban shows us that is simply not the case.

Massachusetts not only experienced an increase in non-menthol cigarette sales, but also saw 62% of menthol cigarette sales move to neighboring states. Since the menthol ban was implemented, Massachusetts has lost roughly $157 million in revenue, with no evidence of any decline in state smoking rates. As the New England Convenience Store and Energy Marketers Association put it, Massachusetts “forfeited the revenue, abandoned an enforceable system, and has nothing to show for it.”

In Arizona, these budgetary impacts will be felt by all departments, including our law enforcement. Recently, rising crime rates across the country have prompted increased recognition of the importance of adequately funded police departments and the vital role they play for public safety.  With this recognition comes a heightened focus on the importance of building relationships of trust between law enforcement and the communities they serve. Without this trust, our ability to keep people safe is severely hampered and our effectiveness is diminished.

As President Biden has pointed out, the vast majority of menthol cigarettes are consumed by minority communities, particularly African-Americans. In fact, studies show that 80% of black smokers use menthol cigarettes. This is a particularly poignant issue given the racially infused events of the last several years, many of which have inflamed tensions between law enforcement and minority communities.

Our concern is that criminalizing the cigarette of choice for these communities will be seen as overly intrusive, and may increase negative interactions between law enforcement and the communities they serve. If and when one of these interactions turns into a use of force, narratives of mistrust will increase.

This issue will not be limited to Arizona; in more than 40 states, the sale and distribution of illegal cigarettes is a felony. Consequently, this FDA proposal may actually increase rates of criminalization and incarceration, particularly among minorities. This seems inherently counterintuitive to the stated goals of the current presidential administration.

Compounding the issue is a simple fact, one that does not take a historian or politician to recognize. Decades of experience have made it abundantly clear that there is really only one guarantee associated with prohibition: a rise in illicit and organized trade.

Even without the proposed menthol ban, here in Arizona we are already struggling to combat the ever growing smuggling and trade of illicit cigarettes. We currently have the fourth-highest cigarette smuggling rate in the country. According to the U.S. Department of State, “cigarette smuggling is a growing threat to U.S. national interests … and fuels transnational crime, corruption, and terrorism.”

Why would we want to incentivize these criminals by expanding their scope, increasing their profitability, and providing them with a new customer base?

Put bluntly, by imposing this ban, we run the risk of destroying state and federal revenues, criminalizing typically law-abiding citizens, and incentivizing organized crime.

About the author

Jobe Dickinson is a retired law enforcement officer and the Executive Director of the Combined Law Enforcement Association of Arizona.