A little over a month ago, the Food and Drug Administration (FDA) released a proposal to ban menthol cigarettes. Why go after menthol cigarettes specifically? As Harvard University points out, menthol is an agent added to cigarettes to create a cooling sensation that masks the harshness of cigarette smoke. There are bronchodilatory properties that allow for deeper penetration of cigarette smoke into the lungs. Because these cigarettes are smoother and easier to smoke, Harvard University points out that there is greater potential for addiction. By removing a more addictive version of cigarettes off of store shelves, the FDA hopes to reduce tobacco deaths, which are a leading cause of death in the United States. The CDC found that about one in five deaths (or 480,000 deaths) are caused from tobacco smoking. If a menthol cigarette ban could make a major dent in tobacco-related deaths, perhaps a ban could be justified, or so goes the argument. However, as we shall see shortly, the argument for a menthol cigarette ban is nowhere as credible as it seems at first glance.
1. Past menthol cigarette bans do not have a great track record of reducing smoking. The Canadian banned menthol cigarettes in October 2017. This is significant because Canada is the country with the longest enacted menthol cigarette ban. Prior to 2017, menthol cigarettes were enacted on a province-by-province bases. How did their ban turn out? According to a study from BMJ Journals, 21.5 percent quit smoking. 59.1 percent switched to non-menthol cigarettes and 19.5 percent still smoked menthols (Chung-Hall et al., 2021). Keep in mind that a social desirability bias (i.e., a response bias in which the respondent wants to give an "acceptable" answer) is in play and could very well be over inflating the quit rates. Plus, there is nothing to be said about the possibility of relapse.
A study from the National Bureau of Economic Research (NBER) diminishes the BMJ Journals' findings (Carpenter and Nguyen, 2020). Although menthol cigarette sales dropped, non-menthol cigarette sales were unaffected. There was no net effect on youth smoking rates because of substitution, which is noteworthy since the FDA made particular mention of youth in its proposal. For adults, there was more evasion than substitution. Instead of going for non-menthol cigarettes, adults purchased menthol cigarettes from areas in Canada that did not have the menthol cigarette ban. In either case, the ban did not have "any significant effects on population rates of cigarette smoking or quit behaviors for either youths or adults."
Massachusetts is another example of these phenomena. Massachusetts is the only U.S. state to have banned menthol cigarettes, which has been part of a greater ban on flavored cigarettes. Yes, it is true that menthol sales in Massachusetts plummeted. What is also true, which the Tax Foundation illustrates, is that Massachusetts-based menthol cigarette smokers travelled to other states to get their menthol cigarettes. This form of evasion all but completely negated the effects of Massachusetts' flavored cigarettes ban.
In 2020, the European Union banned menthol cigarettes. According to a post-ban survey conducted by the Foundation for a Smoke-Free World, only eight percent of menthol smokers in eight European countries quit menthol smoking. As a side note, the University of Waterloo estimates that 1.3 million people would quit with such a ban (Fong et al., 2022). With an estimated 30.8 million smokers in the U.S. (CDC), that would mean a quit rate of 4.2 percent, which is an even lower quit rate than the EU post-ban survey suggests.
I do want to caveat that the data and findings from past menthol bans have their limits. The ban in the European Union is too recent to draw anything too definitive. The data we have on the Canadian menthol ban was prior to 2018 when menthol cigarette bans were on a provincial level in Canada. What the FDA proposes is on the federal level. At the same time, the experiences of Canada and Massachusetts show that demand for menthol cigarettes is high enough where people are willing to find workarounds, whether that is in the form of substitution or evasion.
2. A ban would drive menthol cigarette smokers into underground markets. Since we do not have data from national-level menthol cigarette bans, the best proxy we have is what happens when the government bans a widely-used product in the name of public health. Look at the War on Drugs or the prohibition of alcohol. Those bans did not reduce demand. They gave criminal dealers greater power while driving consumers into underground markets with riskier products. For more on the economic, health, and enforcement costs of the War on Drugs, you can read this Cato Institute policy brief here.
This country already has an illicit tobacco market that accounts for 8.5 to 21 percent of the U.S. tobacco market, according to the National Academies of Science. Given that a) menthol cigarettes accounted for 37 percent of cigarettes smoked in the U.S. from 2019 to 2020 (CDC), b) the menthol cigarette market has a large customer base, and c) menthol cigarettes are a profitable product, international cartels and U.S.-based gangs are going to want to seize that opportunity to make more money. As such, it is reasonable to assume that such a ban would likely create a larger market for illicit cigarettes while driving cigarette smokers towards an even unhealthier cigarettes, as well as possibly towards harder drugs.
3. Menthol cigarettes are not more dangerous than non-menthol cigarettes. The Journal of National Cancer Institute found that a menthol smoker's risk of cancer is lower than that of a non-menthol cigarette smoker (Rostron, 2012), which is an interesting finding considering this is the report that the FDA cited in its recent proposal. The risk of lung cancer could be up to 30 percent lower for menthol cigarette smokers versus non-menthol cigarette smokers (Blot et al., 2011). This might have to do with the fact that menthol smokers smoke fewer cigarettes a day (ibid.). In 2020, the U.S. Surgeon General admitted that there is not adequate evidence to infer that menthol cigarettes are more dangerous than non-menthol cigarettes (p. 12).
4. Menthol cigarettes are not more addictive than non-menthol counterparts. Advocates for a ban stipulate that one of the issues with menthol cigarettes is that they are more addictive. However, that seems to not be the case. A 2022 study from the Journal of the National Cancer Institute, which was released a couple of months ago, entailed a large-scale study of 16,425 smokers. This study revealed similar quit rates between menthol and non-menthol smokers (Munro et al., 2022). Furthermore, there is not even a positive relationship between the distribution of menthol cigarettes and youth smoking rates (Bentley and Rich, 2020), which further undermines the argument that menthol cigarettes are more addictive.
5. A menthol ban would exacerbate disparities in criminal justice. According to the FDA, 85 percent of African-American smokers use menthol cigarettes, as opposed to 47.7 percent of Hispanic smokers, 41.1 percent of Asian smokers, or 30.3 percent of Caucasian smokers. Yes, smoking menthol cigarettes is an unhealthy habit, regardless of the race or ethnicity of the smoker. But it has also been a perfectly legal habit disproportionately enjoyed by African-Americans. Proponents of a ban argue for health benefits (especially for the African-American community), although that argument has been refuted above (See Points #3 and #4).
What becomes an issue is that for a ban to take into full effect, it needs to be enforced. Who is going to enforce this ban? Local police officers, amongst other actors. A menthol cigarette ban would give law enforcement a reason to interact with individuals committing a victimless crime. Since menthol cigarettes are disproportionately smoked by black smokers, the brunt of the police enforcement of that ban will be in black neighborhoods. As the ACLU illustrates, a menthol cigarette ban will "disproportionately impact people of color, as well as prioritize criminalization over public health and harm reduction." Not only will there be more police enforcement, but criminal activity and violence will increase, especially in black neighborhoods (See Point #2). As we will see below (Point #6), there are better ways to lower smoking rates than a menthol cigarette ban.
6. Menthol cigarette bans are not necessary when we have alternatives. As previously pointed out (Point #2), prohibition is a drastic, draconian response with multiple unintended consequences. The response makes even less sense when there are other viable options. There are patches, nicotine gum, or heat-not-burn devices that are alternatives. More to the point, e-cigarettes are shown to be a safer alternative to traditional cigarettes. Cochrane, which is a revered global group of health researchers, also found that e-cigarettes are more effective in helping with smoking cessation than traditional means (Hartmann-Boyce et al., 2020). Our focus should not be on criminalization, but incentivizing smokers to either find other methods to quit or at least use less damaging alternatives such as e-cigarettes (i.e., harm reduction).
7. Menthol cigarette bans come with costs. In public policy, there are no silver bullets. Public policy is about tradeoffs and whether or not the benefits have an acceptable cost. Calling for a menthol cigarette ban is not as simple as "saving lives." Even something as noble as saving lives or improving quality of life for current smokers has a cost. As already alluded to, there are going to be increased costs to enforcing the ban and the other costs related to the criminal justice system (Point #2). There will be the cost of increased criminalization and violence as a result. There is the matter of lost tax revenue. The Tax Foundation calculates that this will cost $6.9 billion of federal and state tax revenue during the first year of implementation (Boesen, 2022). There are also the costs of economic output and the jobs of manufacturers, wholesalers, and retailers of menthol cigarettes (see NYC-specific study here).
The costs as it relates to healthcare are not as straightforward. I brought up this point a decade ago when analyzing a cigarette sin tax in California. The Attorney General's Office (AGO) of California realized that disincentivizing smokers has a cost. If a smoker ceases being a smoker and lives longer, that means incurring future costs for healthcare and social services that would not otherwise be incurred. As such, the net fiscal cost is unknown (AGO, p. 17). As we will see below (Point #8), the decision as to whether one risks dying sooner from smoking or lives longer is not up to the FDA, but up to said individual.
8. Adults should smoke whatever cigarette they would like. This isn't the 1950s when smoking was commonplace and society was unaware of the unhealthy effects. We have education on the effects of smoking, public health campaigns, excise taxes, and indoor smoking bans, all of which exist to deter smoking. If people decide to smoke in spite of all of these deterrents, that is their choice. As the Reason Foundation brings up, "Adults in a free society should be allowed to make their own calculations of costs and benefits when it comes to what they put in their bodies, so as long as they are not harming others."
Menthol cigarettes do not provide an additional threat in comparison to their non-menthol counterparts, so why should the government ban them? If the government is going to be this paternalistic, what's next? Should the CDC go around mandating that we all exercise three times a week or that we eat daily five servings of fruits and vegetables because obesity rates in this country are so high? Most Americans do not get enough sleep. Maybe the government should monitor our sleeping behaviors and mandate how much sleep we should get. There is no overriding, substantiated public health rationale that can justify such paternalistic intervention, and that includes a menthol cigarette ban.
Postscript
To recap, menthol cigarettes are not shown to be more dangerous or addictive than non-menthol cigarettes. The evidence we have on menthol bans do not show they are particularly effective in lowering smoking rates. Instead, we see a large amount of substitution and evasion. It does not make sense to ban menthol cigarettes when we have other methods to lower smoking rates that do not involve the heavy costs and unintended consequences of prohibition. If the FDA does indeed end up criminalizing menthol cigarettes, it would be a step backwards both for public health and criminal justice.
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