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--:-- Sean Rameswaram: With Democrats in charge of Congress and the White House, there's lots of talk about big ideas for the country. Infrastructure spending, gun control, filibuster reform, and banning menthol cigarettes? Yeah, so it's kind of a renewal of the same conversation almost this time last year, right before the pandemic really took hold and became the first priority on everyone's minds.
--:-- Sarah Owermohle: And what's happening is that momentum was already growing in Congress around a menthol cigarette ban. And this had to do with a lot of things going on in terms of public health, criminal justice, and specifically how those two things pertain to Black Americans.
--:-- Sean Rameswaram: Now that we're back and we're thinking about ways to improve public health and narrow disparities, this conversation is coming back up, especially amongst Congressional Black Caucus members. And to my recollection, the last time we were talking about this, this was sort of about flavored vaping and jewels and stuff like that. Is this just about menthol cigarettes or is this about sort of the entire world of flavored smoking devices and tobacco?
--:-- Sarah Owermohle: Well, they're a little bit intermingled because of what was happening with flavored vapes and all this concern about teens getting hooked on tobacco through them.
--:-- Sean Rameswaram: Madam Speaker, many teens today have moved from using flavored e-cigarettes to other flavored nicotine-laced products. That includes things like flavored pouches and drops and pods. Something more is needed to make sure our children don't go from one bad addictive product to the next. But this menthol ban that's being discussed now actually would literally be just menthol cigarettes.
--:-- Sarah Owermohle: Why it's coming up now is because around all this discussion of flavored vapes, there was a lot of concern largely amongst, say, like white suburban parents for what was happening to their children. Parents just need to keep in mind that they might not even know that their kids are using these devices because it's easy to hide. Kids can do this in the classroom. They can use it in the bathroom, which is very common in a school setting. And then it became an issue of, well, we've already had a youth smoking problem, specifically amongst black children, that hasn't been addressed for years and years.
--:-- Sean Rameswaram: The Food and Drug Administration is proposing a ban on menthol cigarettes to go along with its proposed restriction on flavored e-cigarettes. It could be years before the proposal takes effect, but it's a move that health advocates have been pushing for years. It's come up time and again that FDA, the Food and Drug Administration, could also regulate menthol out of marketing, but that it hasn't happened yet.
--:-- Sarah Owermohle: So when this came up in January last year, first it was in a congressional committee, then it was attached to a major bill that passed the House. It was actually just menthol cigarettes, but an excise tax on flavored e-cigarettes was attached to that. So they're kind of related in the sense that we know that these things get youth hooked on tobacco, but they're coming from different parts of communities worried about this.
--:-- Sean Rameswaram: I want to talk more about the communities that would be most affected by this. But before we do, for all those who have never had the distinct pleasure, can you just tell us a bit about menthol cigarettes? What exactly are menthols and how do they compare to regular cigarettes?
--:-- Sarah Owermohle: Announcing Spring Filter Cigarette, the new kind of cigarette which air conditions the smoke for the lightest, cleanest, coolest taste possible today. Fun fact, I am from a tobacco state, Virginia, and I started smoking as a teen on menthols. I quit about six years ago, so that's good. But what is the whole appeal of menthols is that there's this cooling agent in the menthol that masks the harshness of tobacco. Suddenly, it's spring.
--:-- Sean Rameswaram: And everywhere you look, happy smokers are enjoying a new kind of filter cigarette. Spring filter cigarettes. Just a wisp of menthol for soothing taste. Especially if you're a new user, it makes it easier to smoke. And interestingly, there is a level of menthol in just about every cigarette because it does mask things. But they've learned that there's almost this refreshing taste to it when you up that level. And so then they will sometimes market it as being smoother. And then that is something that helps new users get hooked on it.
--:-- Sarah Owermohle: It's kind of like something between a regular cigarette, which is sort of nasty, and a pack of gum, which is refreshing. Yeah, exactly. As cool and as clean as a breath of fresh air. America's most refreshing cigarette. Snow fresh, filtered.
--:-- Sean Rameswaram: How many people in the United States smoke menthols? So we know that roughly 34 million people in the U.S. smoke cigarettes. And of those, somewhere between 35 and 40 percent of people are menthol users. So that would track out to maybe about 10 million people who smoke menthols, which is not an insignificant amount.
--:-- Sarah Owermohle: Also, cigarette use has been steadily going down for the past two decades or so as more information has come out about health risks, as the FDA started regulating it. But menthol use has tracked slower than overall declines in tobacco. So that means that menthol users are still pretty committed to their product. And so do we have any idea of how many of these roughly 10 million menthol smokers in the United States are black?
--:-- Sean Rameswaram: 85% of black smokers prefer menthol. So it a vast majority of those users and those come from CDC figures
--:-- Sarah Owermohle: Give it up for my new game show I know black people Why do black people love menthols so much? I don't know. That is correct. All right. Nobody knows.
--:-- Sean Rameswaram: Well, there's been a long history starting from when menthols became popular in the first place of tobacco companies specifically targeting Black communities through advertisements, through sponsorships of things like the Cool Jazz Festival. The 1982 Cool Jazz Festival. It's live, it's hot, it's cool, and it's coming. These like creative campaigns they would do where they literally would have vans going around in Black communities and giving free samples. A lot of those things have been discontinued since we've had more regulation of cigarettes.
--:-- Sarah Owermohle: Like, for instance, they can't be doing billboards anymore. They can't be doing the magazine ads that they were doing in things like Essence and Ebony and Jet. So those things are discontinued. But one thing that is absolutely still going on is point-of-sale focus. So we know from data that the campaign for tobacco-free kids has collected that there are still disproportionately more tobacco retailers in Black communities than in other communities.
--:-- Sean Rameswaram: And that there even are sometimes cheaper prices for menthols and for cigarillos, these cheap flavored cigars, which are a part of this conversation too. Menthol cigarettes are cheaper in Black neighborhoods. Big tobacco targets us because they think we're just easing money. They get cash. We get killed.
--:-- Sarah Owermohle: And so there is an intentional focus on getting Black Americans, Black teens, to focus on buying these products and making them more appealing to them. And is the popularity amongst Black smokers in particular the reason there's legislation around this right now?
--:-- Sean Rameswaram: Yes, and it's also the reason why this has become a very charged conversation. The tobacco industry has perniciously targeted African-Americans with mentholated products, and thus the NACP is in support of efforts to restrict the sale of menthol cigarettes and other flavored tobacco products because it impacts our African-American community.
--:-- Sarah Owermohle: So you have members of the Congressional Black Caucus being divided over what this means. I spoke to Representative Al Lawson from Florida last year before this vote about what his experience was. And he talked about how when he was young, he remembered kids being let out of school early to pick tobacco in fields and how his father died from smoking-related cancer. And he said this needs to be over for Black Americans.
--:-- Sean Rameswaram: But then I would talk to someone like Yvette Clark from New York who would say, in my mind's eye, I see Eric Garner saying I can't breathe because he died in a police headlock over selling cigarettes. I cannot support H.R. 2339 due to the potential dire consequences that would create additional stop and risk opportunities of African-Americans and the constituents I took an oath to protect.
--:-- Sarah Owermohle: I really believe that this is a health imperative. And if that is the case, the ban should be on all tobacco products and would be the best answer. But unfortunately, this bill does not do that. I yield back.
--:-- Sean Rameswaram: So these are the two sides of the conversation. It's really personal. And there's a lot of concern that if this legislation were to go into effect, it would give another reason for police to target black communities and for police brutality to continue.
--:-- Sarah Owermohle: I think a lot of people understand the sort of motivations when it comes to personal health here or the health of our communities. But tell me more about the sort of policing angle here. How would this ban work? Does it stop the manufacture of menthols or the sale or does it sort of criminalize the consumption?
--:-- Sean Rameswaram: What exactly is it? So that's the really important part of it that advocates say means that it wouldn't lead to overpolicing. It does not criminalize the consumption of these cigarettes. It criminalizes the sale of them.
--:-- Sarah Owermohle: Of course, in practice, that will become difficult because states can always add on to existing legislation about tobacco. So if we pass a nationwide menthol ban, there's not necessarily something saying that states can't criminalize the possession and use of menthol cigarettes. They could do that too.
--:-- Sean Rameswaram: How are lawmakers responding to this argument that this could lead to more policing of Black Americans, especially?
--:-- Sarah Owermohle: Many of them are saying that that argument is coming from the tobacco industry itself and from people who have funding from the tobacco industry.
--:-- Sean Rameswaram: Interesting. And yeah, and they're saying that, you know, more or less, there are two public health crises, the tobacco consumption and the death of many, many Black Americans because of tobacco addiction and the crisis of police brutality and over-policing.
--:-- Sarah Owermohle: But that one can be solved with this and that we can address the other one in different ways is more or less the argument that they are bringing back to the table.
--:-- Sean Rameswaram: You brought up tobacco companies, which dump a ton of money into the coffers of lawmakers in Washington. How are they responding?
--:-- Sarah Owermohle: Yeah, they're not thrilled. They have been targeting states and localities who have already passed menthol bans. They've been suing for them to drop those or introducing ballot measures to go against those.
--:-- Sean Rameswaram: They've been arguing that this infringes on people's personal rights to smoke the tobacco that they want. And that also this is an overreaction to parents' concerns about their children getting hooked on vapes and on tobacco products. And so their whole argument is we'll just improve their sales and marketing so that children don't get their hands on the products. And that that's the real issue, not menthol.
--:-- Sarah Owermohle: If there was interest from the Biden administration to do something about this, do they need Congress? Could this be something that the FDA just did on its own?
--:-- Sean Rameswaram: Yeah, funnily enough, they don't need Congress to do this. The Food and Drug Administration, yeah. The Food and Drug Administration could release its own rules banning the sale of menthol cigarettes when they wanted to. And they've even floated that in the past.
--:-- Sarah Owermohle: The most recent time that it came up was under Commissioner Scott Gottlieb, who was a Trump appointee and a libertarian. So it was kind of odd that he was the one to take this stance. But it was while tobacco use was rising again after a 20-year decline. And he said, you know, it might be time to ban menthol cigarettes.
--:-- Sean Rameswaram: The problem is that it's a very lengthy process for the FDA. They can't just issue a rule and then it's done. They have to go through a process of a draft rule, receiving comments. A lot could be happening. And they don't have a permanent commissioner right now. President Biden hasn't even named who he wants to be the permanent commissioner. So there's concern that without a strong voice at the top of the agency, that won't be the route by which this gets done.
--:-- Sarah Owermohle: And like former smoker to former smoker I mean if it did happen it would kind of be a big deal for like the smoking community, which is an actual community, right? Yeah, it would. I mean, it really, really would. We're talking again about at least 10 million people. We're talking about something that, you know, a lot of us got hooked on when we started smoking. And what are people going to have to do if this goes through? They're going to have to chew minty gum and smoke cigarettes at the same time, huh?
--:-- Sean Rameswaram: I could see it. Do you remember those ones where you'd crush the little menthol thing? Do I? Maybe it would be something like that. It'll just be popping in the gum and smoking. I don't know. People will figure it out. That's the issue, too. People will figure it out, and that's always a potential unintended consequence that other products will come by or a black market will grow. That's something that will have to be discussed as well, and I'm sure that it will.
--:-- Sean Rameswaram: Support for today's show comes from Adio. What is Adio? Adio is an AI-native customer relationship management system built specifically for the next era of companies. They say it's extremely powerful, adapts to your unique data structures and scales with any business model.
--:-- Jody Armour: I oppose the bill, for one thing, because I saw it as an effort to revisit the failed logic of the war on drugs, the logic of prohibition. You can't really oppose the logic of prohibition on the one hand, which we have been doing, especially for the last five to 10 years, in the name of decarceration.
--:-- Sean Rameswaram: And then on the other hand, turn around and enthusiastically embrace that same logic in the name, again, of anti-racism and protecting black lives. And so the legislation in a lot of these bans suggests that the way to protect black lives is to keep black people from being able to consume products on the same footing as white folks.
--:-- Jody Armour: I think your perspective on this might be surprising to some people because as we established in the first half of the show, this legislation is meant to protect black lives. Menthol cigarettes and flavored tobacco have been marketed more effectively, perhaps, to black Americans for decades. And now we've got black teenagers smoking potentially more flavored tobacco. And so you see this, though, as something that could harm black lives.
--:-- Sean Rameswaram: How come? Frankly, the road to hell is paved with good intentions and coercive benevolence. That's what we learned from the war on drugs. We learned that, you know, laws that invite therapeutic policing, if you will, you know, paternalistically protecting people from their own desires and preferences and wants and not respecting their agency to make choices that we might even consider unhealthy, but we view it also as very unhealthy to have any kind of carceral intervention to try to address a health problem.
--:-- Jody Armour: If we think we have a health problem with cigarettes, then we should have health-based solutions and not solutions that are rooted in the police and in jails and in bans and in illicit markets that bans give rise to. And, you know, Eric Garner is almost a poster person for the negative consequences that can flow from efforts to regulate, over-regulate cigarettes or ban cigarettes.
--:-- Sean Rameswaram: You know, he was selling loosies on the sidewalk because there wasn't already availability at a certain price point for cigarettes by many of the consuming public. Now, you ban menthol altogether, and it's going to be even more of a strong temptation for an illicit market to develop. And the temptations to participate in that market are going to be very great among black youth and black folk who are already economically challenged often and seeking any way to bring in a little extra income, including through an illicit market mechanism.
--:-- Jody Armour: Okay, it sounds like you're making two arguments now, Professor, and I want to talk about each of them individually. It sounds like you're making this sort of live free or die argument about policing people's health choices. And then it also sounds like you're talking about the actual police. You brought up Eric Garner and how this whole chokehold business that led to his death actually arose from him selling Lucy cigarettes in Staten Island that day.
--:-- Sean Rameswaram: Let's talk about that first. Congresswoman Karen Bass said the federal bill that would stop people from selling flavored tobacco would stop them from just selling it not possessing it. How would it still contribute to mass incarceration?
--:-- Jody Armour: Well, that's a canard that the bill only addresses the sale of menthol cigarettes and not the use. You know, prohibition, alcohol prohibition in this country, the 18th Amendment and the Volstead Act, they just prohibited the sale of alcohol. But we saw the kind of calamity that that turned into anyway. And so the whole logic of incarceration also requires the police to start to crack down on the sellers. We're not going after the users, but the sellers, like Gary Garner, we are going to be able to go after police, say, in the name of protecting the black community.
--:-- Sean Rameswaram: In the Black Lives Matter movement, when the streets were roiling over the summer with protesters and activists, what they were asking for is a non-carceral approach to our social problems, a health-based approach that doesn't rely on bans and criminalization and law enforcement to address our social issues.
--:-- Jody Armour: And this brings us back to the health argument that I wanted to ask you more about. It sounds like you're saying we don't need the government to tell us what we should smoke and what we shouldn't smoke or or what flavor of tobacco we should smoke and shouldn't smoke.
--:-- Sean Rameswaram: I mean, how far do you take that argument? Do you take it closer to what Oregon recently did in the last election where they decriminalized all drugs?
--:-- Jody Armour: You can't talk out of both sides of your mouth. You can't oppose the logic of prohibition in the name of decarceration and anti-racism, right, when it comes to weed and other drugs, and then turn around and enthusiastically embrace that same logic of prohibition and illicit markets that flow from it in the name of anti-racism and protecting black lives, right?
--:-- Sean Rameswaram: You have to be consistent in your opposition to the logic of prohibition when it comes to weed, when it comes to alcohol, when it comes to cigarettes, when it comes to all kinds of contraband that adults may want to make choices about the consumption of.
--:-- Jody Armour: And you certainly shouldn't say that we're going to police black vice differently than white vice because that's what this winds up doing. This is a ban on a brand of cigarettes that 85 percent of blacks use. Right. We're going to deny you a product that we are allowing your white counterparts to get to in pretty much the same form.
--:-- Sean Rameswaram: You know, we can quibble about whether menthol really is makes the product a little more dangerous, a little more carcinogenic or habit forming, perhaps at the margins. But not enough to justify, again, embracing the logic, failed logic of prohibition.
--:-- Jody Armour: Professor, can I ask you, are you a menthol smoker?
--:-- Sean Rameswaram: No, I don't smoke at all. And I discourage smoking. I discourage my three sons. I tell everybody I can talk to, do not smoke. Don't smoke menthol. Don't smoke non-menthol. You know, it's bad for your health.
--:-- Jody Armour: But I want to take those kinds of approaches. I want to appeal to people as adults who can make decisions and not impose my preferences on them. Right. And we've made great strides in this country in reducing the use of cigarettes. The percentage of Americans who smoke now is a fraction of what it was in the mid 60s at the height of smoking.
--:-- Sean Rameswaram: And we got those deep cuts in the use of cigarettes by Americans, not by criminalizing tobacco. We came up with non-carceral ways, educational ways and other ways to reduce tobacco consumption without falling back on our collective addiction to criminality and crime.
--:-- Jody Armour: That being said, do you realize that your opposition to this legislation, unfortunately or fortunately, depending on your perspective, puts you in league with the tobacco industries? That if someone who works for Camel or Marlboro hears you making this argument right now, they'll be really happy to hear it.
--:-- Sean Rameswaram: The tobacco companies right now are on the right side of the issue. They're on the right side of history. They may not be on the right side and are not on the right side of history when it comes to promoting health for outcomes in the 50s, 40s, 60s when they were advertising that cigarettes were not harmful.
--:-- Jody Armour: That was the kind of fraud that they should have had to reckon for and reckon with. And, you know, there have been suits and there has been some reckoning. But now we're talking about cases in which, like alcohol, people are told up front that there are risks that accompany this particular activity. And now you as adults, we're going to respect your ability to make choices.
--:-- Sean Rameswaram: What a lot of the people who put Joe Biden and Kamala Harris in office were saying, many of those people were the ones marching in the streets throughout the summer. What many of them were saying was, there is no social or health problem for which the answer is more police.
--:-- Jody Armour: Right. So hopefully, once you start with that message, The hope is you can come up with other solutions, other non-carceral alternative interventions. But among those solutions should not be the more police, more prohibition, more illicit markets, more Eric Garner's.
--:-- Sean Rameswaram: Jody Armour is the Roy P. Crocker Professor of Law at USC. I'm more of a UCLA guy myself. Today Explained is a production of VMPN. That's the Vox Media Podcast Network.
--:-- Sean Rameswaram: The team includes Halima Shah, Cecilia Lay, Will Reed, Muj Zady, and our engineer, Afim Shapiro. Amin Alsadi is our supervising producer. Jillian Weinberger is a tap dancer, apparently. And Liz Kelly Nelson is the president of all podcasting, everywhere in the world.
--:-- Sean Rameswaram: Four more years. Extra help this week from Paul Mounsey. Facts checked by Laura Bullard. We're working on a future episode for all the people who are hesitant about getting the vaccine. Not anti-vaxxers, but people who have concerns, whatever they may be, about all these new shots, shots, shots, shots, shots, shots, maybe you're pregnant, maybe you're sick, maybe you're scared of needles, whatever the case, we want to hear from you and we want to address your questions and concerns with the science in an upcoming episode. Give us a call and leave a message at 202-688-5944. Just tell us your name, where you're calling from, and what your vaccine question or concern is. That number again, 202-688-5944. We may use your voicemail in an upcoming episode. Thank you.
