Joe Biden administration reviewing menthol ban despite push by Marco Rubio, others to reconsider
Sen. Marco Rubio, R-Fla., speaks at the Heritage Foundation in Washington, Monday, Feb. 11, 2019, about the crisis in Venezuela. (AP Photo/Carolyn Kaster)

Marco Rubio
Will Biden's administration ignore the critics and finally move forward with a ban?

President Joe Biden’s administration is nearing a final decision on whether to ban menthol cigarettes and flavored cigars despite the move courting some significant pushback.

The Food and Drug Administration (FDA) recently handed over the rule to the White House for a final review. Advocates argue the move will help cut down smoking, and have mentioned youth smoking as a specific concern triggering the new rule.

“The authority to adopt tobacco product standards is one of the most powerful tools Congress gave the FDA, and the actions we are proposing can help significantly reduce youth initiation and increase the chances that current smokers quit,” FDA Commissioner Robert Califf said.

U.S. Sen. Marco Rubio, however, wrote a letter to the FDA in July warning that banning these products from being sold legally could lead to the black market filling in the holes.

According to the letter — also signed by U.S. Sens. Ted Budd of North Carolina, Bill Cassidy of Louisiana and Bill Hagerty of Tennessee — Mexican cartels, or transnational criminal organizations (TCOs), could get a boost.

“We are concerned that potential FDA actions to prohibit the sale of popular tobacco products may expand black market opportunities for TCOs, from Mexico or otherwise, to sell illegal tobacco products in the U.S.,” the letter reads.

“FDA must examine the potential effect of such actions to empower Mexican TCOs and other criminal elements to exploit black markets for tobacco products. Law enforcement officials have raised concerns that FDA’s actions could inadvertently expand black market tobacco sales.”

Several law enforcement officials have voiced similar warnings.

There are also questions about whether the move will, as Commissioner Califf argued, “significantly reduce youth initiation” into smoking.

Data from the Centers for Disease Control and Prevention show youth smoking levels are at historic lows. With so few young people smoking to begin with, it’s likely that an outright ban would have a far greater impact on adult smokers who enjoy menthol products.

As for those adult smokers, Black Americans are the main users of menthol cigarettes. While political concerns shouldn’t directly play into decisions about health issues, the move could cause political headaches for Biden heading into his re-election bid in 2024.

The American Civil Liberties Union has also argued such a ban — targeting a product used disproportionately by a minority population — could lead to enforcement abuses.

“At this pivotal moment, as the public demands an end to police violence erupting from minor offenses, we call on the Biden administration to rethink its approach and employ harm reduction strategies over a ban that will lead to criminalization,” said Aamra Ahmad, senior legislative counsel with the American Civil Liberties Union, in a 2021 statement when the administration began moving forward with the ban.

“Time and time again, we see encounters with police over minor offenses — for Daunte Wright it was expired tags, for George Floyd it was using a counterfeit bill, for Eric Garner it was selling loose cigarettes — result in a killing. There are serious concerns that the ban implemented by the Biden administration will eventually foster an underground market that is sure to trigger criminal penalties which will disproportionately impact people of color and prioritize criminalization over public health and harm reduction.”

It has taken the Biden administration years of working to craft the final rule, and previous administrations have also looked into similar bans. But with the White House now reviewing the FDA language, the rule could be published as soon as this month.

Staff Reports


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