A plan to hike New York state’s cigarette tax and ban flavored tobacco products is caught in a battle between anti-cancer activists, bodega owners, tobacco-industry giants and Black leaders that will ultimately determine whether it ever sees the light of day.

As part of her state budget proposal, Gov. Kathy Hochul wants to increase the state’s cigarette tax by $1 to $5.35, which would surpass Washington, D.C. for the highest per-pack tax in the nation.

She also wants to expand the state’s ban on flavored vaping products to all tobacco products, a move that would prohibit the sale of menthol cigarettes — which, historically, are smoked at higher rates by Black people than other races or ethnicities, according to the U.S. Centers for Disease Control and Prevention.

Hochul’s administration says the proposals are aimed at putting tobacco out of reach of young people. They estimate it would help reduce the youth smoking rate by 9%. But her plan is facing significant pushback, both from bodega and convenience store owners — who say it would help fuel the state’s already robust black market for tobacco products. Black leaders also question whether the menthol ban unfairly targets people of color.

“It wouldn't lead to less sales,” said Kent Sopris, president of the New York Association of Convenience Stores. “It would lead to less sales in regulated, taxed New York convenience stores and tobacco retailers. But cigarettes would still be purchased.”

New York state has long had one of the country’s highest tobacco taxes, which state leaders and the American Lung Association say is an effective tool for discouraging young people from smoking. The tax is even higher in New York City, which tacks on $1.50 per pack at the local level.

The state already banned all flavored vaping products — including menthol — since 2020, while New York City also bans all flavored tobacco products with the exception of menthol, mint or wintergreen.

Backing Hochul’s plan

A bevy of health advocacy groups, such as the American Cancer Society and American Lung Association, are on board with Hochul’s proposal, saying it will make it harder for kids to get started on tobacco products.

“We've seen over the years that of course when you eliminate one product, people move to another,” said Trevor Summerfield, director of New York advocacy for the American Lung Association. “So we want to make sure that as many products are covered under that tax as possible.”

Hiking the cigarette tax would not be a moneymaker for the state.

Hochul’s budget division estimates it would result in fewer legal sales and a drop of $22 million a year in tax revenue when fully implemented. The flavored tobacco ban, meanwhile, would result in an even steeper estimated drop: $133 million in the upcoming fiscal year, and $255 million the year after.

At a budget hearing earlier this month, state Tax Commissioner Amanda Hiller faced questions from Republican lawmakers about whether increasing the cigarette tax meant the state was willingly giving up revenue to the black market — particularly when people can buy cigarettes on Native American reservations or in other, lower-tax states and sell them in New York for a profit.

Hiller said they were missing the point.

“The point of our tax structure right now is to keep cigarettes out of reach of young people, and by increasing it we’re intending to do that,” Hiller said. “In that regard, I’m not sure that there’s always an expectation that we’re going to have all the revenue associated with tobacco sales. But there’s a different policy goal at work.”

Division over proposal

Black leaders, meanwhile, are split on Hochul’s proposal.

Hazel Dukes, the influential and long-serving president of the NAACP New York State Conference, is a major supporter, saying it will “prevent thousands of premature deaths caused by smoking.

Research shows Black people disproportionately use menthol cigarettes, particularly when they first begin smoking, thanks in part to targeted marketing from the tobacco industry.

“The Black community has paid the highest price for Big Tobacco’s immoral targeting of communities of color and it is time to once and for all end the sale of all flavored tobacco products — including menthol cigarettes,” Dukes said in a statement.

Hochul, however, is facing pressure from prominent Black leaders in her hometown of Buffalo to drop the proposal. A group of Black pastors from the Buffalo area — as well as Carl Washington Jr. of Harlem’s New Mount Zion Baptist Church — gathered in Buffalo on Thursday to push back against the proposed flavor ban.

The pastors wrote a letter to Hochul questioning whether a menthol ban would unfairly affect people of color who prefer menthol, especially when non-flavored cigarettes would still be permitted. They also questioned the “criminal justice implications” of the plan, including whether more people of color would be targeted by police if they’re forced to seek menthol cigarettes on the black market.

“It is unjust to expect communities of color to choose between greater public health protections and basic civil rights,” the Baptist Ministers Conference of Buffalo & Vicinity wrote in a letter to Hochul. “We do not accept the premise that we must choose between the two, that these interests are mutually exclusive, or that this debate is zero-sum.”

The ministers’ push to remove the menthol ban from Hochul’s budget proposal picked up significant support Thursday from Assembly Majority Leader Crystal Peoples-Stokes, a Buffalo Democrat who is a Hochul ally and the second-ranking member of the Assembly.

Peoples-Stokes, who is Black, told Buffalo TV station WGRZ that she has concerns with Hochul’s proposal.

"I understand the impetus of the policy is to get people to stop smoking, which is a good thing," Peoples-Stokes said, according to the station. "But I think it shouldn't be this selective. It goes way too deep ... and would be a mistake, so I will be working to have it excluded."

Summerfield said he’s heard the concerns from some members of Black communities, but added that Hochul’s proposal is crafted to ensure any enforcement would be focused on manufacturers and retailers — not on customers.

“We have heard concerns from members in those communities that they fear that this is just another reason for police and law enforcement to target them,” Summerfield said. “That’s not the case in the bill. Again, that's some more misinformation that's being pedaled by the other side.”

Hochul and state lawmakers will spend the next six weeks negotiating a final state budget ahead of the April 1 start of the state’s fiscal year.