Op-Ed: Colorado ban on flavored menthol tobacco creates unlawful market

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As lifelong police accountability advocates and drug policy reformers, immediate concerns come to mind when we learn that our lawmakers are considering banning flavored tobacco products: House Bill 1319. Those concerns are compounded when menthol and menthol cigarettes are included in the ban become. A similar proposal was recently passed at a hearing in the House of Congress in Washington, DC. A senior ACLU legislative analyst said before the vote, “This is not a public health law, this is a criminalization law.”

Although users will not be specifically criminalized under these proposed prohibitions, the American Civil Liberties Union quote reflects the reality that police will inevitably be involved at the national level and in Colorado. Put simply, in already marginalized communities, where menthol is most prevalent, will law enforcement patrol and facilitate an illegal market while a ban is in place? It is doubtful, and it is known, that the police harass these communities for far less.

In a world where police violence is a public health concern and the leading killer of young black men, we don’t need another reason for police / civilian interactions that can have life threatening or life changing consequences. For communities of color, a blanket ban on tobacco and menthol cigarettes is fertile ground for increasing the number of controls and searches, which already disproportionately affect minorities. This is because research shows that of black adults who choose to smoke, more than 80 percent prefer menthol cigarettes; this includes black adult smokers in Colorado. It’s pretty telling that the architect of these taste bans in New York State was also the architect of that state’s stop-and-frisk policy: Michael Bloomberg.

The same arguments apply to flavored vape products, which are primarily about access and use by teenagers. Despite the understandable need to closely monitor this situation and tighten regulations, a ban in this area is also bad public order. School lockouts and exclusions are likely to increase as the illegal flavored vape market flourishes. And there is discrimination in our schools, as colored students are far more likely to be suspended because of similar behavior compared to their white colleagues.

Vaping regulations in Colorado and the nation have been too lax for too long. This reality is coming to an end as the state and various jurisdictions tightened regulations. The Food and Drug Administration also recently banned flavored tobacco pods used by JUUL, which had the highest concentration of nicotine and were popular with teenagers. The FDA was smart enough not to ban all flavored tobacco products, nor did the Centers for Disease Control and Prevention suggest it.

There is a lot we can learn from the UK when it comes to steam policy. They didn’t allow vaping until after stricter regulations were in place, including advertising restrictions. They kept this subject above ground and did not allow an illegal market to flourish; As a result, only one case of EVALI (e-cigarette or vaping product-related lung injury) has been reported, vaping rates among teenagers in the UK are lower than in the US, and usage rates have stabilized among all users regardless of age over time.

Regulatory and educational work. It is far preferable to open the door to illegal activity by issuing a blanket ban.

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

Research shows that menthol consumption, like all tobacco consumption, is at an all-time low. This has been achieved through aggressive and targeted public education. Now is not the time to disrupt this trend by creating an illegal market that is likely to make flavored tobacco products more popular and profitable.

As a state known for its independent political streak, we know that banning popular substances or activities for adults carries the risk of unintended consequences and seldom, if ever, protects adolescents. Such efforts can become superficial and redundant in relation to their original purpose. A sort of illegal market immediately arises that opens the door to a whole host of new problems.

Colorado has shown that it is able to identify the specific damage and develop strategies to combat it. It happened when the state-run Marijuana Enforcement Division decided to ban the use of vitamin E acetate in THC vaporizing products in the face of EVALI fear. They haven’t banned vaporizing THC or THC flavors entirely. We should leave knee-jerk and, frankly, lazy policies to decision-makers elsewhere.

I urge Colorado MPs to consider the far-reaching implications of a blanket ban on flavored tobacco and menthol cigarette products. I urge policymakers and regulators to do the hard work that nuanced policies produce. I urge decision-makers to develop a real approach to public health instead of creating an illegal market overnight as that would be the unintended consequence of a menthol cigarette and flavored tobacco ban.

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

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