Regulating Soda, Crack, and Menthol Cigarettes

Late last week, the FDA announced that it intends to ban menthol cigarettes. This is in part because these are the cigarettes that Black smokers prefer. Smoking takes a bigger toll on Blacks than Whites, so maybe this will help reduce a source of health disparities. Indeed it sounds like a good idea.

Except that some people have misgivings. The ACLU immediately wrote to the HHS Secretary Xavier Becerra to object:

“While no doubt well-intentioned, these proposals raise the same concerns a number of organizations expressed last year … Policies that amount to prohibition for adults will have serious racial justice implications. Such a ban will trigger criminal penalties, which will disproportionately impact people of color, as well as prioritize criminalization over public health and harm reduction.”

Targeting Black People

Likewise, Eugene Robinson writes in the Washington Post that this proposal leaves him uncomfortable. Though he sees the great harm that cigarettes cause, he worries that the ban will serve to single out Black smokers who favor something that will become contraband. He writes:

The FDA won’t go anywhere near the third rail of proposing a ban on all cigarettes. If the agency really wants to stop smoking and end health disparities, it will have to work with Black Americans, not just target us.

Recall that Eric Garner was arrested and killed on suspicion of selling loose cigarettes.

Regulating Other Vices

Other vices have been tricky to regulate when racial disparities are part of the picture. Public hysteria about crack cocaine led to criminal penalties that were dramatically harsher for Black people. It became a legal expression of systemic racism.

Likewise, taxes on beverages deemed to be unhealthy, but more often consumed by people of color, can have regressive effects with an uncertain health benefit. Philadelphia taxes bottled sweet drinks at corner stores, but sugary drinks at Starbucks are exempt. At a recent meeting of the National Academies Roundtable on Obesity Solutions, Professor Stephanie Navarro Silvera cautioned:

“We need to be really careful of unintended consequences. You might be putting an undue [economic] burden on low-income communities – primarily communities of color.”

Assumptions About Good and Evil

In Galileo’s Middle Finger, Alice Dreger suggests that assumptions about the goodness of one’s own agenda deserve close examination:

“Nowadays I feel as though 90 percent of my time talking to academics and activists is spent trying to convince them of this: The people who are against you are not necessarily evil, and your own acts are not necessarily good. That’s why we still need scholars and activists. It’s not easy to see what’s what in the heat of the moment, and we need people pushing for the truth and justice if we’re going to get both right.”

The bottom line here is simple. If the intent of public policy is to help people, then policymakers should be working with the people they are trying to help – not just targeting them. Public policy should serve to lift people up, not marginalize them.

Click here for the commentary from Eugene Robinson and here for the perspective from FDA.

Monument to Hipparchus, Copernicus, Galileo, Kepler, Newton, and Herschel; photograph © Slices of Light / flickr

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May 7, 2021