The Conservative Hypocrisy on Menthol Cigarette Ban

Many Americans perhaps don’t realize that Congress gave the Food and Drug Administration (FDA) regulatory authority over tobacco in 2009.  Nor do they know that the Family Smoking Prevention and Tobacco Control Act (TCA), enacted that same year, banned the sale of flavored tobacco products, with the exception of menthol-flavored cigarettes and flavored cigars.

But by now, I suppose that everyone in America has heard about the plan of the FDA to ban menthol-flavored cigarettes and all flavored cigars. “Banning menthol — the last allowable flavor — in cigarettes and banning all flavors in cigars will help save lives, particularly among those disproportionately affected by these deadly products,” said acting FDA Commissioner Janet Woodcock, who acknowledged the support of the Biden administration for the ban.

The proposed ban does not target individuals. But it doesn’t have to, since it is comprehensive enough to include manufacturers, distributors, wholesalers, importers, and retailers. According to an FDA statement: “The FDA cannot and will not enforce against individual consumer possession or use of menthol cigarettes or any tobacco product. The FDA will work to make sure that any unlawful tobacco products do not make their way onto the market.”

This is just how Prohibition worked. The Volstead Act of 1919, which instituted Prohibition, stated that “no person shall on or after the date when the eighteenth amendment to the Constitution of the United States goes into effect, manufacture, sell, barter, transport, import, export, deliver, furnish or possess any intoxicating liquor except as authorized in this Act.”

Naturally, anti-smoking and public health advocacy groups cheered the FDA’s decision, even as smoking rates among American adults are at an all-time low.

The black community is divided, however.

According to the FDA, nearly 85 percent of black smokers prefer menthol cigarettes, and flavored cigars use by black youth is twice as high as that of white youth. “This proposal will do more to reduce youth tobacco use and health disparities in the African American community than any set of actions the federal government has ever taken,” said Matt Myers, president of the Campaign for Tobacco-Free Kids. The African American Tobacco Control Leadership Council called the FDA’s announcement a “major step forward in Saving Black Lives.” The Congressional Black Caucus  has historically opposed the menthol ban, but the majority of its members voted in favor of a bill last year to ban flavored e-cigarettes and menthol cigarettes.

Black police organizations, the Drug Policy Alliance, and the American Civil Liberties Union  counter that a ban on menthol cigarettes will lead to an underground market of menthol products and over-policing of black communities. The Rev. Al Sharpton “says it would be discriminatory to outlaw a product that is especially popular among African Americans.”

I have searched far and wide over the length and breadth of the Internet and have been unable to find a single conservative site that supports the FDA’s menthol ban. The proposed ban “won’t improve health outcomes, but will bring more people under government coercion,” says a writer at National Review. The Washington Times called the ban “the latest in a series of nanny-state attacks on consumer choice with regard to tobacco.” Even Americans for Tax Reform termed the ban “a grave danger to civil liberties” that “will do nothing to reduce smoking rates.”

So why is this significant?

Because most every conservative publication, organization, think tank, pundit, and politician supports the federal government’s war on drugs, including marijuana. Most of them are absolutely horrified at the increasing number of states that have legalized the medical or recreational use of marijuana.

Marijuana is harmful, unhealthy, addictive, a gateway drug, dangerous, and has no legitimate medical use, they say.

But if that is why marijuana should be banned by the federal government, then why aren’t conservatives lining up behind the FDA’s proposed ban on menthol-flavored cigarettes? Indeed, why aren’t they demanding that the FDA ban all cigarettes? Cigarettes are harmful, unhealthy, addictive, a gateway drug (nicotine), dangerous, and have no legitimate medical use.

And that’s not the half of it. According to the Centers for Disease Control and Prevention (CDC):

• Smoking leads to disease and disability and harms nearly every organ of the body.
• Cigarette smoking remains the leading cause of preventable disease, disability, and death in the United States.
• Cigarette smoking is responsible for more than 480,000 deaths per year in the United States.
• Smoking causes cancer, heart disease, stroke, lung diseases, diabetes, and chronic obstructive pulmonary disease (COPD), which includes emphysema and chronic bronchitis.
• Smoking also increases risk for tuberculosis, certain eye diseases, and problems of the immune system, including rheumatoid arthritis.
• On average, smokers die 10 years earlier than nonsmokers.

Cigarette smoking is one of the deadliest activities that anyone could ever engage in.

The TCA required that the FDA come up with new warning labels for cigarette packages and advertisements. In June of 2011, the agency published a final rule requiring color graphics depicting the negative health consequences of smoking to accompany textual warning statements. This was challenged in court by several tobacco companies, and later vacated after the U.S. Court of Appeals of the District of Columbia held that the rule violated the First Amendment. But following a lawsuit filed by public health groups, the FDA was directed to publish a new final rule, which has now been postponed until April 14, 2022.

The proposed new warnings to appear on cigarette packages and advertisements are:

• WARNING: Tobacco smoke can harm your children.
• WARNING: Tobacco smoke causes fatal lung disease in nonsmokers.
• WARNING: Smoking causes head and neck cancer.
• WARNING: Smoking causes bladder cancer, which can lead to bloody urine.
• WARNING: Smoking during pregnancy stunts fetal growth.
• WARNING: Smoking can cause heart disease and strokes by clogging arteries.
• WARNING: Smoking causes COPD, a lung disease that can be fatal.
• WARNING: Smoking reduces blood flow, which can cause erectile dysfunction.
• WARNING: Smoking reduces blood flow to the limbs, which can require amputation.
• WARNING: Smoking causes type 2 diabetes, which raises blood sugar.
• WARNING: Smoking causes age-related macular degeneration, which can lead to blindness.
• WARNING: Smoking causes cataracts, which can lead to blindness.

To support the federal government’s classification of marijuana as a Schedule I controlled substance with “a high potential for abuse,” “no currently accepted medical use in treatment in the United States,” and “a lack of accepted safety for use of the drug under medical supervision” and at the same time criticize the FDA for wanting to ban menthol cigarettes is one of the greatest act of hypocrisy in history. And especially since the federal government’s own FDA and DEA have acknowledged that smoking marijuana never killed anyone.

But it goes much further than that. Even though the use of hard drugs like cocaine, heroin, and fentanyl sometimes leads to overdoses and deaths, that is still no comparison to the carnage of cigarette smoking. Any conservative who supports the government’s war on drugs while opposing the FDA’s ban on menthol cigarettes is a colossal and vile hypocrite. And especially those who talk about the Constitution, federalism, limited government, individual liberty, private property, and the free market.

The libertarian position on the government’s war on drugs and tobacco is straightforward. There should be no laws at any level of government for any reason regarding the buying, selling, growing, processing, transporting, manufacturing, advertising, possessing, or using of any drug or tobacco product for any reason.

Smoking cigarettes and taking drugs might be harmful, unhealthy, addictive, dangerous, and deadly. Doing these things might even be immoral, profane, impious, iniquitous, and sinful. But as much as nanny statists want it to be, it is simply none of the government’s business what any American wants to smoke, snort, swallow, inject, or inhale into his own body.

The post The Conservative Hypocrisy on Menthol Cigarette Ban appeared first on The Future of Freedom Foundation.