In 2017, advocates and lawmakers in San Francisco rallied support for what then seemed like a difficult task: banning the sale of flavored tobacco products. When they succeeded at winning voter approval of the measure last year, advocacy groups like the Campaign for Tobacco-Free Kids heralded the move. In fact, it was considered something of a breakthrough—one of the most comprehensive attempts in recent U.S. history to rein in the use of deadly tobacco products.
One product included in the ban was menthol cigarettes.
Menthol cigs have always been contentious, thanks in no small part to their being disproportionately marketed to and used by children on one hand and Black consumers on the other. While activist cities like San Francisco can prohibit their sale, the Food and Drug Administration (FDA) is the only U.S. agency with the ability to completely remove them from the market. The FDA has been flirting with the idea over the past decade, ever since President Obama signed the Family Smoking Prevention and Tobacco Control Act, which gave the agency the explicit authority to regulate tobacco. After that law's passage, in 2009, the feds promptly banned flavored cigarettes. But they notably left out menthol-flavored ones.
Despite moving further in that direction in the past two years, the FDA has yet to pull the trigger. Meanwhile, in recent weeks, a new menthol problem has arisen: With a spate of vape-related illnesses popping up around the country, President Trump urged the FDA to ban flavored e-cigarettes, a process that's already underway at the local level in cities like San Francisco and states like Michigan. As in those two cases, the national approach will reportedly include a prohibition of the menthol flavor.
Not everybody, however, is convinced that it should, and the lack of consensus on the issue—and the FDA's repeated failure to act on traditional menthol cigarettes in the past—is shining a light on how the government treats one vulnerable group over another in the face of a public-health crisis.
At its most simple, the question boils down to this: Is banning menthol and mint–flavored e-cigarettes before actual menthol cigarettes—use of which has long been associated disproportionately with Black people—racist? In other words, why else but some kind of prejudice, latent or otherwise, would the government move to act so quickly on a novel health problem connected to menthol vapes when it's been (at least according to critics) dragging its feet on menthol cigarettes, a proven killer of a specific marginalized community, for many years?
Because of the cooling effect it produces, menthol flavor makes cigarette smoke less harsh. This quality has long been pitched, quite infamously, at two main populations: African Americans and children. And it works. According to the (CDC), "Nearly 9 of every 10 African-American smokers (88.5 percent) aged 12 years and older prefer menthol cigarettes," and "more than half (54 percent) of youth ages 12–17 who smoke use menthol cigarettes." The vaping crisis has further separated these groups: the Black smokers who have smoked menthol cigarettes for decades, and what some experts have identified as the newly addicted, relatively wealthy teenagers drawn to devices like JUUL.
The lack of solid research around e-cigarettes and vaping doesn't make things any easier. If it was universally believed, for instance, that vaping was generally safer than traditional cigarettes (as many health experts argue), then denying disproportionately Black smokers an easy option to transition away from the number one cause of preventable death would be almost impossible to justify.
One reason the FDA has had so much trouble banning menthol cigarettes is that they are hawked by cash-flush distributors like Reynolds American, which produces Newports—the most popular menthol brand in the United States—and employs lobbyists who spout the rhetoric of racial justice. Meanwhile, despite JUUL Labs going on a lobbyist hiring spree in recent years and being partially owned by Big Tobacco, its harm-reduction rhetoric may be a tougher sell in the face of alarmed headlines about a new health scare.
E-cigarettes are also simply an exciting new health concern among those advocating for young people of all backgrounds.
"Donald Trump has a 13-year-old, who, if he's not already using JUUL, he is certainly their prime market," said Stanton Glantz, a professor of medicine at the University of California, San Francisco. (JUUL Labs has long denied targeting young people with its products.)
Other tobacco-control experts, like Michael Siegel, a professor of community health sciences at Boston University focused on harm-reduction, have much more cynical outlooks on the situation.
"It makes no sense to ban flavored electronic cigarettes while allowing flavored cigarettes (i.e., menthol) to remain on the market," Siegel said. "These politicians want to be able to say they did something to improve the public's health, but they don't have the courage to actually take on Big Tobacco and its powerful lobby. That's why they have such an easy time banning flavored e-cigarettes, but not menthol real cigarettes. The vaping industry is not very powerful; it is mostly comprised of small businesses." (It's worth mentioning that, politically salient or not, many of those shop owners are afraid of going out of business.)
When reached for comment, FDA spokeswoman Stephanie Caccomo suggested the feds going after menthol e-cigs first—and relatively quickly—was partly a product of it simply being easier to pull off. That is, because products like JUUL have (notoriously) not been approved by the agency in the first place, it makes for an inviting target with fewer regulatory hurdles. "FDA is able to accelerate a compliance policy related to flavored electronic nicotine delivery systems (ENDS) currently on the market through a guidance because these products are not legally marketed and are subject to government action," she said. "The compliance policy the FDA anticipates releasing in the coming weeks is a matter of outlining the enforcement policy for such products. FDA continues to have concerns about the role that flavors play in attracting youth to use tobacco products."
Meanwhile, politicians alarmed at recent vape-related deaths obviously don't know where to land. In New Jersey, for example, lawmakers are discussing a blanket ban on all e-cigarette sales (not just flavors), which would make it the first state to enact that kind of measure. Meanwhile, in New York, Governor Andrew Cuomo's proposed sales ban via emergency order was not expected to include menthol, a reportedly purposeful omission, as the governor cited statistics that such a flavor had the potential to help some smokers quit cigarettes by transitioning, first, to vaping.
Even so, a New York City Council push to ban traditional menthol cigarette sales was apparently gaining momentum.
It's only natural that the tobacco industry has long opposed a blanket ban on its own menthol products. But the issue has stoked division within the Black community as well, with notable institutions like the National Organization of Black Law Enforcement Executives and Al Sharpton's National Action Network—which has received donations from Reynolds—siding with Big Tobacco and calling attention to any ban's racial implications. That is, in addition to everything else, a menthol ban—cigarette or e-cigarette—could disproportionately criminalize the actions or preferences of Black people.
"Giving officers even more reason to detain and engage on the basis of a menthol tobacco ban would assuredly lead to encounters that are likely to escalate to the unnecessary use of force, arrests, and possibly deadly force as we saw with Eric Garner five years ago in New York," Cheryl Dorsey, a veteran of the Los Angeles Police Department, wrote in the LA Sentinel, in June.
However, Valerie Yerger, a founding member of the African American Tobacco Control Leadership Council and an associate professor in health policy at the University of California, San Francisco, argued that the concerns were connected—and that failing to ban both menthol cigarettes and e-cigarettes would be the most dangerous outcome of all.
"A ban that exempts menthol [e-cigarettes] absolutely continues to put African Americans at a disadvantage, keeping them unprotected by policies and leading to more unintended consequences," she said. "Vaping makes kids four times more likely to start smoking combustible products. They'll go to flavored ones, so if menthol cigarettes remain on the market, which flavored product do you think kids will use?"
The only plausible answer, it's safe to say, could have a chilling effect.
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