Menthol ban gains momentum among black lawmakers

“The tobacco industry targets the African American population with menthol. Menthol should be banned,” Congressional Black Caucus Chairwoman Karen Bass (D-Calif.) said Wednesday. As for the threat of a crackdown, “I believe that the tobacco industry has created that myth, and they know that we are sensitive to anything that has to do with over-policing or incarceration.”

What would be a tidal shift for black lawmakers comes just as House leaders say they will prioritize bringing up for a vote for legislation on banning flavored tobacco products in the new few months. House Majority Leader Steny Hoyer said Wednesday that the bill, sponsored by Energy and Commerce Chair Frank Pallone (D-N.J) and former HHS head Donna Shalala (D-Fla.), is a top priority. Shalala told POLITICO that taking the menthol provision out is a non-starter. Senate Democrats launched a companion bill Thursday.

Momentum for aggressive tobacco regulation has grown as teen vaping rates skyrocket and a marijuana vape-linked lung illnesses has killed dozens. President Donald Trump’s pared-down e-cigarette flavor ban — which leaves out menthol vapes — inspired congressional Democrats to push for harsher laws.

More than 85 percent of black smokers report using menthol products, as do more than half of all youth who smoke, according to government data. Federal health officials said they left menthol vapes out of e-cigarette flavor bans because far fewer teens use them compared with other flavors.

Three Black Caucus members, Reps. G.K. Butterfield (D-N.C.), Yvette Clarke (D-N.Y.) and Donald McEachin (D-Va.) ultimately voted against Pallone’s bill in the Energy and Commerce committee this November. Butterfield and Clarke have suggested they could take the same stance in a full House vote.

“I come from New York City, where stop-and-frisk has become really out of control. A lot of young people run through the system for no good reason,” Clarke told POLITICO days after the committee meeting. She added that penalizing youth for menthol cigarettes would be “low-hanging fruit” for law enforcement.

“It’s an improper and unfair approach to begin solving the problem by targeting menthol cigarettes which happen to be disproportionately used by a racial group,” Butterfield said this week. “Raise the smoking age to 30, do a 10-year phase out of tobacco, if you are really serious about eliminating tobacco use.”

Butterfield said he believes a “critical mass” of Congressional Black Caucus members share his views on the menthol measure.

But many others disagree — and some, like E&C member Rep. Lisa Blunt Rochester, have pushed to get caucus members on board with menthol bans. The Delaware Democrat told an emotional story during the markup about family members getting hooked on cigarettes. It’s not the bill that is targeting African American communities, she said, but the industry.

“I believe that we have a mass incarceration problem in our country. We also have a public health crisis,” Blunt Rochester told POLITICO. “While we don’t know the consequences of this ban, we do know the impact that menthol and cigarette smoking has had on our community.”

Congressional Black Caucus members say that the issue has not come up formally yet in meetings, but they expect it to as the bill moves towards a floor vote. Rep. Lacy Clay (D-Mo.), who backs the menthol ban, said he thinks most of the 50-plus members of the caucus agree with him.

High-profile activists such as Al Sharpton have fought menthol bans in cities like San Francisco and New York over concerns about how they would play out for African American users. The mothers of Trayvon Martin and Eric Garner have argued that bans would fuel a black market and lead to potentially deadly encounters with police. Garner suffocated and died in 2014 after police put him in a headlock because he was selling cigarettes on the street.

But prominent groups such as the NAACP and National Urban League have also gotten behind menthol bans in recent years. NAACP applauded the FDA in 2018 for a proposal to bar menthol cigarettes, saying that the industry for decades has “successfully and intentionally marketed” to African Americans. That FDA proposal has not yet been released.

Supporters of the Pallone-Shalala bill argue that it does not penalize consumers for buying illegal products, but skeptics say that there is nothing to stop states from passing laws that would end up targeting them.

California’s Santa Clara County first banned menthol cigarettes along with all e-cigarette products in 2016 and updated the ban in November. While there was not much resistance to the ban, as cities passed their own versions of the policy, enforcement on consumers did become an issue, said Sara Cody, director of the country’s public health department.

The City of Santa Clara added a possession provision to its version that Cody said is a “slippery slope” to penalizing youth. She and others are pushing the city to change its ordinance, but in the meantime, the “crazy quilt” of city and state policies makes regulation confusing. “There needs to be federal law,” said Cody.

New York’s Clarke acknowledged that the tobacco industry specifically targeted African Americans with menthol marketing, but said that should not deter a carve out for menthol products in the bill. Many black communities do not have the same resources to help people quit tobacco that others do, she said.

“Tobacco was king” where Florida Democrat Al Lawson grew up — when he was young, kids were let out of school early to work in the tobacco fields. His father died from cancer related to smoking, he told POLITICO. “The only reason why I could see that members of the Caucus might have some problem with [a menthol ban] might be based on contributions that they might receive,” he said.

Butterfield acknowledged that he hails from “a tobacco district,” but said that the government should tackle the whole industry, not just a product used primarily by African Americans. Several lawmakers from North Carolina and Virginia, home to R.J. Reynolds and Altria respectively, receive campaign contributions from the tobacco giants.