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Op-Ed: Ban on Flavored, Menthol Tobacco Creates Illicit MarketEXPAND
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Op-Ed: Ban on Flavored, Menthol Tobacco Creates Illicit Market

As a lifelong police accountability advocate and drug policy reformer, immediate concerns come to mind when learning our state legislature is considering a ban on flavored tobacco products: House Bill 1319. That concern is amplified if menthol and menthol cigarettes are included within the ban. A similar proposal recently passed a congressional House hearing in Washington, D.C. A senior legislative analyst for the ACLU had this to say prior to the vote: "This isn't a public health bill, this is a criminalization bill."

Although users aren't expressly being criminalized under these proposed bans, the American Civil Liberties Union quote reflects the reality that police nationally and in Colorado will inevitably become involved. Simply put, will law enforcement stand pat in already-marginalized communities where menthol is most prevalent, allowing an illicit market to exist while a ban is in place? It's doubtful, and police have been known to harass these communities for far less.

In a world where police violence is a public-health concern and the number-one cause of death for young black men, we do not need another reason for police/civilian interactions that can have life-threatening or life-altering results. For communities of color, a blanket flavor tobacco and menthol cigarette ban is fertile ground to add to the rates of stop-and-search incidents already disproportionately impacting minorities. This is because research shows that of the black adults who choose to smoke, more than 80 percent prefer menthol cigarettes; this includes black adult smokers in Colorado. It's somewhat telling that the architect of these flavor bans within the state of New York was also the architect of that state’s stop-and-frisk policies: Michael Bloomberg.

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The same arguments apply to flavored vape products, where the concern is primarily youth access and use. Despite the understandable need to monitor this situation closely and tighten regulations, a ban in this space is also bad public policy. It is likely we'll see school suspensions and expulsions increase as the illicit market for flavored vape products flourish. And discrimination exists within our schools, as students of color are far more likely to be suspended for similar conduct compared to their white counterparts.

Vaping regulations in Colorado and the nation were too lax for too long. That reality is coming to an end as the state and various jurisdictions have tightened up regulations. The Food and Drug Administration has also recently banned flavored tobacco pods used by JUUL, which were highest in nicotine concentration and popular among youth. The FDA was wise enough not to ban all flavored tobacco products, nor has the Centers for Disease Control and Prevention suggested it.

We can learn quite a bit from the United Kingdom in regard to vaping policy. They allowed vaping only after initiating tighter regulations, including advertising restrictions. They kept this issue aboveground, not allowing an illicit market to flourish; as a result, only one case of EVALI (e-cigarette or vaping product use-associated lung injury) was reported, vaping rates among youth in the U.K. are lower than in the U.S., and use rates have plateaued for all users no matter their age over time.

Regulation and education work. It is by far preferable to opening the door for illicit activity by enacting a blanket ban.

In addition, and more directly in line with the intent of these bans, a recent report by the Surgeon General states there is “not enough evidence to conclude that banning menthol cigarettes would reduce smoking.”

Research shows that menthol use, like all tobacco use, is at historic lows. This was accomplished with aggressive and targeted public education. Now is not the time to disturb that trend by creating an illicit market likely to make flavored tobacco products more popular and profitable.

As a state known for its independent political streak, we know prohibiting adults from popular substances or activities runs the risk of inherent unintended consequences, and rarely, if ever, protects youth. Such efforts have the ability to become shallow and superfluous in regard to their original intent. An immediate illicit market of some kind will result, opening the door for a whole new set of problems.

Colorado has shown an ability to identify the specific harm and craft policy to address it. This was done when the state Marijuana Enforcement Division decided to disallow the use of vitamin E acetate within THC vaping products in light of the EVALI scare. They didn't ban THC vaping or THC flavors altogether. We should leave knee-jerk, and, frankly, lazy policies to decision-makers elsewhere.

I urge members of the Colorado Legislature to consider the broad impact of a blanket ban on flavored tobacco and menthol cigarette products. I urge decision-makers and regulators to do the hard work spawned by the nuanced policy. I urge decision-makers to establish a true public-health approach as opposed to creating an illicit market overnight, as this would be the unintended consequence of a ban on menthol cigarettes and flavored tobacco.

Art Way is the former director for the Colorado chapter of the Drug Policy Alliance and founder of Equitable Consulting LLC.

Westword occasionally runs opinion pieces and essays on matters of interest to residents of metro Denver. Have one you'd like to share? Email editorial@westword.com.

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