Calls Grow In NY To Fully Outlaw Tobacco, As Federal Menthol Ban Looms

For years, New York City and state lawmakers have been working to make it harder and more expensive for residents to smoke. A public health group is now laying out an ambitious goal: Ending the sale of smokable tobacco products altogether. The New York State Public Health Association is among 148 organizations worldwide that signed onto a statement released Monday calling for governments to “commit to work towards phasing out sales of combustible tobacco products.”

“It's aspirational,” said Dr. Gus Birkhead, who serves as secretary of the New York State Public Health Association and worked in the state Health Department for 27 years. “It's trying to lay out a vision that I think most people who work in public health would agree with. Tobacco remains the leading cause of preventable death and premature disease in our population, despite years of trying to combat it.”

Such policy is rare but not unheard of: Beverly Hills became the first city in the country to pass such a ban in 2019, and the law took effect this year. The letter also comes amid a heated debate over tobacco prohibition in the U.S. sparked by the Food and Drug Administration’s announcement at the end of April that it is working on regulations to bar menthol cigarettes and flavored cigars. The FDA has already outlawed other flavors in cigarettes and vape products, arguing that the additives are too appealing for young people. About 9 in 10 adults who smoke daily try it before age 18.

New York State includes menthol in its current restrictions on flavored vape products. But legislation in Albany to get menthol cigarettes off the shelves has stalled so far; the bill has not made it out of the Health Committee in either the Senate or Assembly this session. Birkhead said getting state lawmakers to pass the bill is a top priority for his organization. “I suspect [the FDA regulations] will get tied up in court,” he added.

Similar legislation also failed to make it to a floor vote in the New York City Council in 2019 as local lawmakers took action on other tobacco restrictions. At the time, a spokesperson for Speaker Corey Johnson said in a statement that he “has heard the concerns that banning menthol cigarettes will create a black market in a community that has been over-policed in the past.”

In New York and at the federal level, prospective menthol bans have been the subject of controversy. Proponents say eliminating menthols, the preferred cigarette of most Black smokers, will promote health equity. But critics argue that Black people will be disproportionately targeted in the enforcement of new laws. In New York State, 86% of Black smokers prefer menthols, as do 72% of Latinos. The cigarettes are favored by just 36% of White smokers.

A study cited by the FDA evaluated the effects of banning menthols in seven Canadian provinces. It found that nearly 60% of those who smoked menthols before they were outlawed switched to non-mentholated cigarettes, and about 20% found another way to obtain them. But nearly 22% quit smoking. Based on that research, the FDA projected that a federal determent on menthols could lead 923,000 smokers to quit, including 230,000 African Americans, in the first 13 to 17 months after it takes effect. The agency also cited a 2011 study that predicted a menthol ban would avert some 633,000 deaths by 2050, including those of 237,000 African Americans.

The agency’s decision to eliminate the minty cigarettes from the market came in response to a longstanding petition from national public health organizations, including the African American Tobacco Control Leadership Council. The NAACP also supports the effort, stating April 29th: “For decades, the tobacco industry has been targeting African Americans and have contributed to the skyrocketing rates of heart disease, stroke and cancer across our community.”

Two dozen drug policy and criminal justice groups, including the American Civil Liberties Union and Drug Policy Alliance, countered with a letter raising concerns about the potential for such a law to fuel the black market and lead to further criminalization of Black and brown communities. As the letter notes, the enforcement of tobacco laws can lead to dangerous interactions between the police and people of color, as in the case of Eric Garner, who was killed by an NYPD officer in 2014 while being apprehended for selling loosies.

“Policies that amount to prohibition for adults will have serious racial justice implications,” the letter reads. “Such a ban will trigger criminal penalties, which will disproportionately impact people of color, as well as prioritize criminalization over public health and harm reduction.”

The FDA says its policy maneuver would focus on checking manufacturers, distributors, wholesalers, importers and retailers. “The FDA cannot and will not enforce against individual consumer possession or use of menthol cigarettes or any tobacco product,” the agency said in its release.

The legislation in Albany similarly seeks to avoid criminalizing possession, instead proposing a fine on retailers. In light of criticism, the bill's sponsors amended it to state that the police would not be able to use the possession of a menthol cigarette as a pretext to stop, question or search someone, including as a way to find the vendor who sold it to them. It also says the law should be enforced by the state Health Department rather than the police.

New York is the cigarette-smuggling capital of the country, thanks to high taxes on smokes, according to the Tax Foundation. After Massachusetts instituted a menthol ban last year, its cigarette sales dipped—as did tax revenue—but menthol sales spiked in neighboring states, suggesting that some people traveled elsewhere to get their preferred pack.

It’s unrealistic to say that police would not be involved in enforcing new regulations, especially given that those trafficking cigarettes may also be involved in other crimes, according to Richard Marianos, a law enforcement consultant and professor at Georgetown University who previously served with the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives.

“We're working extremely hard in the law enforcement profession to work on police reform,” said Marianos. “To place, in effect, a prohibition where we are going to create more policies to divide ourselves with the community is only going to draw a bigger gap.”

As of 2019, 11.9% of adults in New York City smoked tobacco, compared with 14% of all U.S. adults. Birkhead argues that the mounting state and local restrictions on smoking in New York—which include raising the legal age to purchase tobacco from 18 to 21, imposing high taxes and stopping tobacco sales in pharmacies—have been “chipping away at” the problem.

“Unintended consequences are something to be aware of and to try to be prepared for,” Birkhead said of his organization’s endorsement of policies prohibiting the commercial sale of tobacco. “But it's not something that should necessarily stop you from going ahead.”