Just because a government bans something like flavored tobacco doesn’t mean individuals will stop seeking it out for consumption.
Menthol cigarettes and other tobacco products are displayed at a store in San Francisco on May 17, 2018. Credit: Jeff Chiu / AP

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Jacob Posik is the director of legislative affairs at Maine Policy Institute.

Last month, the Biden administration reaffirmed its intent to implement a nationwide ban on menthol cigarettes and other flavored tobacco products, a goal first outlined by the president and his team last year.

Since that announcement, the U.S. Food and Drug Administration has been working to finalize its rule to prohibit the sale of these products and says one will be issued “in the coming months,” but the agency is currently behind schedule.

Maine lawmakers attempted their own prohibition in the most recent session but were unsuccessful. Dissension within the ranks of majority Democrats — coupled with the sizable loss in revenue that would come from enactment while trying to finalize a state budget that included record spending — ultimately sank the bill this time around. But it will likely be back again in the future.

Proponents of the flavor ban claim that prohibiting the sale of these products will save lives and reduce disparities in health outcomes. Yet data from other states and our country’s history with prohibitions tell a much different story.

Prohibiting menthol and other flavored products nationwide, as a small handful of municipalities (including Bangor) have already done in Maine, will lead to disparities in enforcement and result in millions — perhaps billions — of wasted and misallocated resources cracking down on counterfeit and contraband cigarettes instead of fighting real crime in our communities.

A great example of this can be found next door in Massachusetts, which implemented its own flavor ban in 2020. Those seeking such prohibitions say that a blanket ban will stamp these products out of society, but that’s simply not reality. In fact, bans have the negative effect of giving rise to illicit and counterfeit products, as well as cross-border smuggling.

After the Bay State’s ban went into effect, Massachusetts’ Multi-Agency Illegal Tobacco Task Force recorded record amounts of inspections and smuggling in its most recent annual report.

Since Massachusetts’ ban began, the task force has seized 23,860 packs of cigarettes, 54,655 cans of smokeless tobacco, 381,670 individual cigars, 5,351 bags of smoking tobacco and 178,521 vapes.

Is conducting random inspections and criminal investigations into the sale and distribution of these previously legal products truly the best and most appropriate use of law enforcement time and resources? Don’t state and municipal law enforcement agencies have more important things to do that would actually improve public safety?

Meanwhile, Massachusetts’ ban had little immediate impact on overall smoking rates within the region. While Massachusetts witnessed a 24 percent decline in sales, neighboring states like New Hampshire saw an increase of 22 percent while Rhode Island and Vermont experienced increases of 18 percent and 6 percent bumps, respectively.

Those seeking flavored tobacco prohibitions also say a ban is needed because menthols and other flavored products unfairly target communities of color resulting in wide disparities in health outcomes. The U.S. Centers for Disease Control and Prevention’s data show that among non-Hispanic Black adults who smoke, 81 percent of them smoke menthol cigarettes.

This is no doubt a troubling statistic and something we should work to fix, yet given the data, we should ask ourselves whether a ban is the most effective means of achieving this goal.

Further, which communities do proponents of bans think will be on the receiving end of enforcement when the bans begin?

Just because a government bans something doesn’t mean individuals will stop seeking it out for consumption. This should be clear to anyone who has learned about our nation’s unsuccessful prohibition on alcohol in the 1920s and the failed war on drugs begun in the 1970s.

Who will go to prison for illicitly producing, counterfeiting, smuggling or purchasing these products when the ban is implemented? How long from now will we be talking about removing mandatory minimum sentences for menthol cigarette trafficking?

Not only do I believe that a flavor tobacco ban is an unwise strategy to combat use of these products, it will ultimately hurt the communities it’s intended to help. Education and harm reduction are much better strategies to reduce tobacco use — which has continued to decrease historically absent state-level bans — than prohibition.

The effort to ban flavored products nationwide is simply a reincarnation of the failed war on drugs. Don’t expect different results.