The Washington Post reports today that the Biden administration will delay a decision on banning menthol cigarettes and cigars until March 2024, after receiving complaints from such organizations as the American Civil Liberties Union and several civil rights groups that a menthol ban might fuel a black market, which can exacerbate criminal justice disparities.

As I wrote here, these groups’ concerns about exacerbating criminal justice disparities are well-founded. According to the National Survey on Drug Use and Health, in 2020, 81 percent of Black and 51 percent of Hispanic smokers preferred menthol-flavored cigarettes. We must never forget the tragic story of Eric Garner. New York City’s exorbitant taxes on cigarette packages generated an underground market in untaxed individual cigarettes, called “loosies.” In 2014, police infamously encountered 43‐​year‐​old Eric Garner selling loosies on a street corner, and a policeman’s chokehold led to his death as he repeated, “I can’t breathe.” This happened without a menthol ban.

With menthol cigarettes more popular among Blacks and Hispanics, expect police to focus their attention on minority communities. The last thing this country needs is yet another reason for law enforcement to engage with minorities they suspect are committing the victimless crime of selling menthol cigarettes in the black market.

The European Union’s experience with a menthol ban suggests that the proposed product standard will not work and will likely foster a menthol cigarette black market. A recent EU survey finds 40 percent of menthol smokers switched to non-menthol, and only 8 percent quit smoking. More importantly, however, 13 percent reported getting menthol cigarettes from “other sources.” 

A black market for smuggled menthol cigarettes has emerged. A major source is Belarus, where menthol brands such as Minsk, Fest, and Queen are smuggled into EU countries. The UK press reported that such “illicit whites,” as they are called, are smuggled into the country by gangs and can be purchased “under the counter” from small British tobacconists for the right price. More recently, researchers from Yale and Duke universities reported similar developments where states banned menthol tobacco in the Journal of the American Medical Association.

Proponents of a menthol ban believe that people who smoke menthol cigarettes have a harder time quitting tobacco. However, a 2022 study reported in the Journal of the National Cancer Institute found menthol smokers have no greater difficulty giving up smoking than non-menthol smokers. Moreover, FDA researchers have reported that there is “evidence of lower lung cancer mortality risk among menthol smokers compared with non-menthol smokers among smokers at ages 50 and over in the US population.” And a prospective cohort study involving more than 85,000 participants in twelve southern states, reported in the Journal of the National Cancer Institute in 2011, concluded that “menthol cigarettes are no more, and perhaps less, harmful than nonmenthol cigarettes.” Perhaps this is because menthol smokers tend to smoke fewer cigarettes per day.

The Food and Drug Administration also plans to order a dramatic reduction in the nicotine content of tobacco products. While nicotine is the addictive component of tobacco smoke, it is not nicotine but rather the other components of tobacco smoke that produce harm. Nicotine, like caffeine, is a stimulant that improves focus. Unlike caffeine, nicotine increases the production of beta-endorphins that relieve anxiety, which may explain why some tobacco smokers light up when they want to calm down.

Nicotine can be quite addictive, but regular caffeine consumption can also be addictive and lead to “Caffeine Use Disorder.” Aside from nicotine’s addictive potential, the drug is relatively harmless. It can raise blood pressure in some people, but so can caffeine. Both can be toxic if consumed at high dosages. And, as I wrote here, recent studies suggest that nicotine normalizes cognitive deficits, called “hypofrontality,” in people with schizophrenia and may improve short-term memory.

Rather than risk fueling a black market in higher nicotine cigarettes, the FDA should make it easier for people to obtain nicotine-containing e‑cigarettes, a proven form of tobacco harm reduction. Alas, the agency has been going in the other direction.

The delay of a decision on the menthol ban and nicotine reduction until next spring allows the Biden administration to consider the unintended consequences before it makes a public health mistake.