A Discussion on Menthol Bans and Criminalization of Black Communities

Cigarettes, Disparities, Flavors (including Menthol), Product Availability
A perspective piece from Rose DeLeon-Foote, CounterTobacco.org Project Assistant 
Conversations about regulating menthol cigarettes have ignited a reactionary response from R.J. Reynolds, makers of Newports. These conversations have been stirred up by a series of events including a 2016 ruling allowing the FDA to use a Tobacco Products Scientific Advisory Committee (TPSAC) report, which concluded that a ban on menthol would benefit public health. R.J. Reynolds is taking advantage of the current racial and political climate by recruiting Reverend Al Sharpton and the National Action Network to discuss menthol cigarette regulation as a means of further criminalizing Black community members. Given the history of the tobacco industry targeting Black and low income communities with their marketing of an addictive product that creates significant health risks, it is peculiar that they would suddenly want to fight for the best interests and lives of Black people. 
Meetings hosted by Reverend Sharpton are happening in churches in Minneapolis, Minnesota, Oakland, and Los Angeles, California, specifically in communities that have recently been engaged in activism around police brutality. According to a Fair Warning Report, “The company [R.J. Reynolds] has paid travel costs for the panelists and contributed to their organizations, according to the panelists and Reynolds spokesman David Howard. However, promotional flyers (herehere and here) suggest that Sharpton and his National Action Network are the main sponsors of the meetings, rather than the tobacco company.” 
Black community concerns with police brutality and the disproportionate number of Black people incarcerated within the US have recently become prevalent topics of discussion. Nationwide movements have arisen to fight the perceived causes of these disparities, and books and films have been released focused on mapping out the policies that have led to the criminalization and mass incarceration of Black men. The War on Drugs in the 1970’s and the War on Crime of the 1990’s most notably mark where the number of Black men and women incarcerated began to sky rocket
As people begin to better understand the consequences of specific crime and drug policies and express interest in the well being of the Black community, political stakeholders can consider how communities of color will be impacted as new policies are enforced. It is from this wave of consciousness that R.J. Reynolds has found its window of opportunity. 
At first glance, R.J. Reynolds seems to finally be on the side of the people, but R.J. Reynolds is not lobbying for thoughtful regulation to prevent the further criminalization of Black people. R.J. Reynolds is strategizing against all regulation of their products so that they can continue marketing to Black communities. More than 80% of Black smokers prefer menthol. According to the TPSAC report, 47% of Black smokers would quit if menthol were banned. This market loss would be a hit that R.J. Reynolds wants to avoid. R.J. Reynolds’ strategic reaching out to the Black community and exploiting historical distrust of police is a preemptive move with ulterior motives. 
With these perspectives, it appears that there is no winning – well-intended, but haphazardly written regulations can continue the criminalization of Black people, while a lack of regulation allows the tobacco industry to perpetuate current health disparities through sales and advertising. However, there is also a third option: carefully constructed policy that specifically places the legal burden upon retailers rather than consumers. 
PUP (Possession, use, or purchase) laws unfairly place the legal burden upon community members who have been victims of tobacco addiction through the tobacco industry’s marketing. PUP laws have the repercussion of criminalizing individuals who otherwise may not have had reason for police interaction, and are not proven to be effective. If policy makers are not extremely careful to structure menthol regulations as sales laws (like San Francisco's newly proposed ban on sales of all flavored products, including menthol) rather than PUP laws, it is possible that simple possession or use of menthol cigarettes could cause unnecessary police interactions. It is important that tobacco policies are written to avoid any potential for inequitable enforcement that may lead to further brutality, unfair sentencing, and incarceration. It is important to ensure any potential tobacco policy is evaluated with equity as a top priority. 
Tobacco control policies have been proven to advance health equity, especially when focused on retailer density and proximity to residential neighborhoods and schools. It is imperative when creating any policy that the social impacts of implementation and enforcement be considered carefully. About 45,000 Black people die from tobacco-related illness every year.  [1] If R.J. Reynolds is truly concerned about the criminalization of Black people, why are they not also concerned about the health of Black communities?
Learn more about tobacco industry targeting of Black communities in our evidence summary on Disparities in Point-of-Sale Advertising and Retailer Density and more about menthol products in our evidence summary on Flavored Tobacco Products.
Rose DeLeon Foote assists with the development and writing of site and newsletter content. Rose received her Master of Public Policy from Lorry I. Lokey School of Business and Public Policy at Mills College. Prior to her graduate studies, Rose worked in youth-focused community based organizations throughout the California Bay Area in roles varying from Program Facilitator to Evaluation Coordinator. She believes in creating equity for communities of color through engaging community members in research, analysis, and action. Rose received her BA in English from UC Berkeley. 
As with all content on CounterTobacco.org, the content of this article is solely the responsibility of the authors and does not necessarily represent the official views of the Centers for Disease Control and Prevention, ChangeLab Solutions, or the Department of Health and Human Services.