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Black Cops Fear Menthol Ban Will Bring Heavy Police Crackdown (1)

April 30, 2021, 1:39 PMUpdated: April 30, 2021, 4:08 PM

Black cops and civil rights advocates, grappling with calls to curb police violence, fear a proposed ban on menthol cigarettes from the Biden administration will only spur more confrontations between officers and Black people.

“The government says that the police won’t be enforcing this ban, but law enforcement is and has always been the dumping ground for all issues,” said Corey Pegues, a retired deputy inspector at the New York Police Department.

The Food and Drug Administration insists the menthol cigarette ban announced Wednesday is meant to address health disparities in communities of color and low income populations, which disproportionately use those products. But the specter of Eric Garner, killed by police officers while being detained for selling loose cigarettes, gives some law enforcement officers and police reformers pause. They warn the ban could drive more heavy-handed enforcement and more police encounters for Black men.

Pegues pointed to the War on Drugs and the current opioid crisis as health issues law enforcement has been enlisted to help address but which he said led to damaging consequences, such as incarceration or death, for people of color.

“With smoking, we can agree that it’s a health issue. It’s not for law enforcement. You can’t bring cops to deal with a health issue because we tried that and it’s devastated so many Black and Brown people.”

The FDA in a statement said the ban wouldn’t lead to increased policing of individual menthol cigarette users.

“If implemented, the FDA’s enforcement of any ban on menthol cigarettes and all flavored cigars will only address manufacturers, distributors, wholesalers, importers and retailers,” the agency statement said. “The FDA cannot and will not enforce against individual consumer possession or use of menthol cigarettes or any tobacco product.”

Police Enforcement

In 2014, Garner, a Black man in New York City, died after being placed in a chokehold by a police officer, who was questioning him for allegedly selling single cigarettes.

That same year, Michael Brown, an 18-year-old who was suspected of stealing a box of cigarillos, was shot and killed by a police officer in Ferguson, Mo.

And in 2020, George Floyd was killed in Minneapolis after police responded to a call from a store clerk who alleged he had used a counterfeit bill to purchase cigarettes.

Nearly 30 opponents of the ban including the American Civil Liberties Union and the Drug Policy Alliance, sent a letter Wednesday urging Biden administration officials to reconsider the prohibition.

“A number of police encounters resulting in tragic deaths are linked to police enforcement of tobacco laws,” the letter said, invoking the deaths of Garner, Brown, and Floyd.

The letter was also signed by the National Association of Black Law Enforcement Officers, National Association of Blacks in Criminal Justice, and National Association of Criminal Defense Lawyers.

Gwendolyn Carr, Garner’s mother, in 2019 spoke out against a proposed New York City ban on menthol cigarettes, saying it would lead to more stop-and-frisk policing.

“A ban will introduce or re-introduce many hard-to-employ young black New Yorkers to the criminal justice system,” Carr said at the time.

Advocates said a ban could also create an underground market for menthol cigarettes, inviting more policing.

“There are serious concerns that the ban implemented by the Biden administration will eventually foster an underground market that is sure to trigger criminal penalties which will disproportionately impact people of color and prioritize criminalization over public health and harm reduction,” Aamra Ahmad, senior legislative counsel with the American Civil Liberties Union, said in a statement.

Aimed at Industry

Anti-tobacco activists disputed the argument that the ban would increase police confrontations with Black people.

“The local police will not be enforcing these laws and these laws are about the manufacturers,” said Carol McGruder, a founding member and co-chair of the African American Tobacco Control Leadership Council. “So, when we talk about the smuggling and the black market, there won’t be anything to smuggle because it will be cut off at the source.”

McGruder said the idea that Black people “have a cultural affinity” for menthol tobacco products only highlights how the tobacco industry targeted those products at Black communities for decades.

Other civil rights groups said the focus of the ban would be on Big Tobacco. Because the ban is aimed at tobacco manufacturers, distributors, wholesalers, importers, and retailers, the companies would be punished and not the individual, said Derrick Johnson, president of the NAACP.

“If it is found that the companies are allowing their product to be placed into the stream of commerce and they have intentionally placed that flavor into the cigarettes, those companies should be fined. Not the individual,” Johnson said. “That’s how you stop the flow of the banned product.”

But others aren’t convinced. If tobacco companies don’t make or sell menthol cigarettes, the law enforcement radar will move to whoever has the product—which will more than likely be found on the black market, Pegues said.

“If there’s a national ban, do you think that [R.J.] Reynolds or all of these other big tobacco companies are going to take a chance to produce the cigarette? No. It’s going to be underground,” he added. “So, forget about the companies. It’s like the drug game. We can’t get to the big drug dealer without getting the little people—which are the ones who use the product, which has been Black people.”

“Black people are going to be even more of a target. The only way we can help with reducing smoking is education, treatment, and counseling. You can’t arrest your way out of an addiction,” Pegues said.

Michael R. Bloomberg has campaigned and given money in support of a ban on flavored e-cigarettes and tobacco. He is the majority owner of Bloomberg LP, the parent company of Bloomberg Industry Group.

(Updates with disclaimer in final paragraph that Michael R. Bloomberg has campaigned and given money in support of a ban on flavored e-cigarettes and tobacco.)

To contact the reporter on this story: Ayanna Alexander in Washington at aalexander@bloomberglaw.com

To contact the editors responsible for this story: Meghashyam Mali at mmali@bloombergindustry.com; Andrew Childers at achilders@bloomberglaw.com

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