Earlier this month, the House of Representatives voted to end the 83-year-old federal criminalization of marijuana. The passage of the Marijuana Opportunity Reinvestment and Expungement Act marks an important milestone in ending the war on drugs. On the House floor, numerous congressmen and women gave impassioned speeches as members urged their colleagues to vote for the bill in the name of racial justice, personal choice, public health, scientific research, and protecting youth from unregulated black markets.
Ironically, these are the exact arguments that Congress is ignoring in their pursuit of flavored tobacco prohibitions.
The same body that decried the dangers of marijuana black markets this month supported the most significant federal prohibition of the last 50-years in February: H.R. 2339, which would have banned all flavored tobacco products, including menthol cigarettes and flavored vapes.
The federal prohibition of flavored tobacco products would have been disastrous for public health and criminal justice.
On the public health side of the ledger, banning the most popular alternative to cigarettes in the form of flavored e-cigarettes would deter people from quitting smoking more dangerous traditional cigarettes and push many vapers back to cigarettes. E-cigarettes have been proved beyond any reasonable doubt to be safer than regular cigarettes, and the latest evidence review suggests they are more effective at helping smokers quit than traditional nicotine replacement therapy.
The justification politicians use for prohibition is that children are lured into vaping because of fruity and sweet flavors. But data from the Centers for Disease Control and Prevention show that the vast majority of children who try vaping do so out of curiosity and peer influence, much as with marijuana and alcohol.
Contrary to the arguments of prohibitionists, adult vapers trying to quit smoking do not gravitate toward tobacco flavors. The vast majority use sweet and fruit flavors. The consequence of prohibition would be more smoking, and the few remaining e-cigarettes left on the market, mostly produced by tobacco companies, would come in tobacco flavors.
The ban on menthol cigarettes would have dire consequences for criminal justice and overpolicing in minority communities. Around 85% of black smokers use a menthol product. Prohibitionists claim menthol cigarettes are more attractive to children and are harder to quit, but black adults are no more likely to smoke than whites, and black youth are significantly less likely to smoke than their white and Hispanic peers. Of the few children who smoke, a majority use nonmenthol cigarettes. So, why are menthols inherently more threatening than Marlboro Reds?
That black smokers would have their choice of product banned while the majority of white smokers continue to buy their preferred cigarette is not only unfair but lacks any compelling evidence. Banning menthol cigarettes disproportionately used by black smokers will necessarily mean disproportionate enforcement in policing this new prohibition, which is precisely why the American Civil Liberties Union and other civil rights organizations wrote to Congress voicing their concerns about H.R. 2339.
The groups that pushed hardest for the ban are at least consistent in their prohibitionist positions. In 2019, Dorian Fuhrman, one of the founders of Parents Against Vaping E-cigarettes, told Congress she opposed the legalization of marijuana. Matthew Myers, the head of the Campaign for Tobacco Free-Kids, said in the same hearing, “I don’t believe most of the tobacco control folks out there believe in marijuana legalization.”
Congress is pursuing divergent and contradictory paths for nicotine and marijuana regulation. A majority of Republicans voted against the flavored tobacco ban, while most Democrats did the reverse. The opposite was the case for the MORE Act. The good news is that vaping dropped dramatically this year, and youth smoking is at historic lows. Congress must work for safer, regulated markets for both nicotine and marijuana and avoid repeating the mistakes of the drug war with e-cigarettes, menthols, and smokeless tobacco.
Guy Bentley (@gbentley1) is a contributor to the Washington Examiner’s Beltway Confidential blog. He is the director of consumer freedom at the Reason Foundation.
