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California’s menthol ban: New report reveals a failed experiment

October 20, 2023

In 2021, California legislators banned the sale of menthol cigarettes, taking a prohibition approach to reducing tobacco usage. But a new report proves something we should’ve known from history: prohibition of widely available legal products does not work and often creates more problems than solutions.

When policymakers made the decision to prohibit menthol cigarettes, their aim was to reduce the supply of these products in the market. However, an underground market was ready to ensure a steady supply and continued use of these products.

A recent study of discarded cigarette packs from across California found an unknown menthol brand called “Sheriff,” which has connections with Mexican cartels showing up frequently across the state. By analyzing the contents of public trash cans around the state, researchers were able to determine that even though Sheriff is not in the top 10 most popular menthol cigarette brands, Sheriff is the 5th most common brand found discarded. This inexplicable prominence, coupled with the cartel’s association with it in Mexico, strongly points towards their involvement in disseminating these illicit menthol cigarettes across California.

Also, shortly after the ban took effect, other new cigarette products entered the market. These cigarettes looked just like traditional menthol products, with blue and green packaging, but somewhere on the pack is a designation that they are “non-menthol.” This was clearly meant to confuse menthol cigarette smokers to continue lighting up, and it appears to be working, with the study showing roughly 7% of discarded packs were these menthol “work-around” products.

The survey found that 14% of packs discarded were still menthol despite the ban. Prior to the ban, menthol cigarettes made up 24.5% of the market. Between menthol cigarettes and the menthol “work-around” products, that number has decreased only slightly to 21%.

When a legal product gets banned, particularly one valued at $30 billion nationally, criminals are ready to take advantage of the void that’s created and use those profits nefariously. A bipartisan group of senators recently warned in a letter to Secretary of State Blinken of the financial linkage between Mexican trans-national criminal organizations and tobacco smuggling activities. Cartels use money from tobacco sales to fund a whole host of other criminal activities, including: smuggling fentanyl, human trafficking, and more.

It’s not just the Mexican cartels benefiting from prohibitionist tobacco policies, as illegal Chinese flavored vaping products continue to flood the streets.

The survey unearthed another staggering statistic—98% of discarded vapes featured flavors, despite the FDA’s lack of approval for flavored e-cigarettes. Highly flavored brands like Elf Bar, Flum, and Funky Republic, mostly originating from China, should not even be on the market and are banned at the federal, state, and often local level. Yet these illegal products remain readily available across California.

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California’s struggles with a menthol ban mirror Massachusetts’ failures, which banned all flavored tobacco products June 2020. Menthol cigarettes still run rampant, and Massachusetts’ inability to get these products off the market has led state policymakers to consider criminalizing individual possession – meaning law enforcement intervening to stop individuals smoking menthol cigarettes.

Both California and Massachusetts’ inability to successfully enforce bans on these products sets a grim precedent for the upcoming federal menthol ban.

Prohibition may seem like a quick-fix solution, but the real world is far more complex. Such bans lead to unintended consequences, like the emergence of unregulated and potentially dangerous products in the underground market that fuels cartel activity. Rather than reducing harm, such bans can exacerbate it by pushing consumers towards untested and unregulated alternatives that are more dangerous for public health.

Andrew Sarega is a retired Newport Beach police officer and Mayor Pro-Tem in La Mirada, CA.

Orange County Register

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California’s menthol ban: New report reveals a failed experiment

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