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Prohibition didn’t work before, neither will banning tobacco


“Those who do not learn the lessons of history, are doomed to repeat them.” The FDA should heed these words as it considers banning the sales of menthol cigarettes and characterizing flavors in cigars.

History has proven, most notably in the 1920s when the United States outlawed the sale and distribution of alcohol, that products in demand will always find a market — legally or illegally.

As the executive director of the New England Convenience Store & Energy Marketers Association, I am keenly aware of the demand for tobacco products and the extremely loyal nature of the adults who enjoy them. For the past two years, I’ve had a front row seat for the country’s only statewide ban of all flavored tobacco in Massachusetts — a similar failed experiment that the FDA would be prudent to evaluate closely.

As was the case in the 1920s with liquor, cross border sales and illicit market activity of menthol and flavored tobacco quickly filled the void created by the Massachusetts ban. Demand for these products has not changed in Massachusetts. Instead, consumers have merely turned to unregulated street sales, rather than purchasing these products from the state’s licensed retailers who check IDs and ensure that only legally manufactured products are sold to legal-aged adults.

A whopping 87% of cigarette tax stamp sales shifted from Massachusetts to New Hampshire and Rhode Island during the first year of the Massachusetts ban, which went into effect June 1, 2020. This will most certainly occur nationwide if the FDA continues down the path to ban these high-demand products.

The market for menthol cigarettes and flavored cigars in the United States is valued at roughly $31 billion. Like liquor in the 1920s, abandoning this market presents too lucrative an opportunity for illicit market participants to ignore. In Massachusetts, we have already seen a robust illicit market take hold, and much of it has ties to gangs and organized crime due to the high markup of street sales.

Anti-tobacco advocates indiscriminately use outdated youth usage figures for cigarettes and cigars and make baseless accusations about modern day targeting of minority communities, citing outdated points about marketing and advertising. While these advocates are solely focused on their goals and care little for the consequences, the FDA must consider them outside the lens of advocacy and through the lens of public health, public safety, economics and consequences — both intended and unintended.

Since 2019, the federal government has taken aggressive action to combat youth access to tobacco products, including raising the minimum legal sales age to 21, expanding the PACT Act to include e-cigarettes, banning all flavored pod-based vape except menthol and tobacco flavor, requiring all tobacco and vape products to file Pre-Market Tobacco Applications, and authorizing the FDA to regulate synthetic nicotine.

As a result of these actions, along with general anti-smoking awareness, youth use rates for tobacco and vape products are at historic lows. The FDA would be wise to capitalize on this trend, continue promoting education and awareness campaigns, and ensure that states are properly funding tobacco control agencies and efforts, so these gains are not lost.

The FDA should not repeat history. Prohibition did not work before and will not now. Banning menthol cigarettes and flavored cigars is a doomed-to-fail policy that we do not need to explore — again.

Jonathan Shaer is executive director of the New England Convenience Store and Energy Marketers Association.


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