Yesterday was the 90th anniversary of the repeal of Prohibition, so I have a new piece at Reason about the lessons that era holds for contemporary efforts to prohibit tobacco and nicotine. It touches on the proposed generational tobacco ban in the UK, the similar proposal just reversed in New Zealand, vape bans around the world, flavor bans in the US, and the total disaster that is Australia, where mere possession of a vape is a criminal offense and rival gangs are torching tobacco shops in a turf war for the illicit market. Read it here!

Relatedly, the Biden administration is further delaying its long-anticipated ban on menthol cigarettes. As Dan Diamond and David Ovalle report for the Washington Post, this seems to be due at least partly to political considerations. The administration now anticipates an announcement in March of next year. Anti-smoking groups are urging immediate action, while others are raising civil liberties concerns and noting the electoral risks.

As I posted on Bluesky yesterday, I think the risk that a menthol ban could contribute to tipping the 2024 election to Trump is worth seriously considering. A lot of Americans smoke menthol cigarettes. The Post cites a 2019 figure of 18.5 million Americans using them; other estimates suggest about 40% of adult cigarette smokers choosing menthol brands, which would put the figure closer to 12 million. Menthol cigars probably bump the figure higher. Regardless, that’s a significant bloc of adults that would be directly impacted by a menthol ban.

A ban would disproportionately impact Black and Hispanic smokers. The 2020 National Survey on Drug Use and Health finds that about 80% of the former and 50% of the latter use menthol cigarettes, compared to about a third of white smokers. Notably, these are demographic groups that are crucial to Biden’s re-election and among which he is distressingly losing support.

What do voters think of a menthol ban? There’s quite a bit of variance among surveys, but it’s worth looking at data from a 2018 survey funded by the Truth Initiative. Overall, it finds that a narrow majority (56%) of adults support a menthol ban. Support is greater among African-Americans (60.5%) and Hispanics (69%). On the surface, that seems to signal that announcing a menthol ban might be good politics.

There is one important group, however, among which support for a menthol ban drastically plunges: people who smoke menthols. Only 28.5% of adult smokers who prefer menthol cigarettes want the government to ban them. That shouldn’t be surprising, but it’s very inconvenient for ban advocates and potentially for Biden’s electoral chances if his administration moves forward with the policy.

The big question is which of these survey results is most important: the modest support for a menthol ban among these demographic groups as a whole or the overwhelming opposition among the people who smoke them. I’m personally skeptical that a menthol ban would be a major motivator bringing voters to Biden. Do non-smoking voters care all that much about tobacco policy? A ban would be extremely salient to smokers themselves, however. They would identify Biden directly with banning a product they use everyday and Republicans would quite credibly accuse Democrats of using big government to interfere in adults’ choices.

To be transparent about my own biases, I think a menthol ban is bad policy. I also think it’s vitally important for the future of the United States that Donald Trump does not become president again. So, I’m extremely invested in Biden winning the 2024 election even if that does mean we get a menthol ban. But the timing of that ban matters, and I’d be a whole lot less worried about the FDA announcing it in 2025 than in 2024.

With that in mind, I’m not sure what the Biden administration gains by delaying the announcement just to March, even closer to the election. I’d much prefer that he just bury the issue for now and focus on much more important matters, like not handing the country over to an aspiring dictator.

There are a couple objections to this worth addressing. One is that public health shouldn’t be a matter of politics. This is completely wrong; banning menthol is a political issue. Weighing in on issues like this is exactly what elections are for. If Biden is worried that banning menthol would motivate people to vote against him, then he’s justified not banning menthol.

A second objection is that delaying the menthol ban risks losing the opportunity to implement the policy. There is certainly some truth to this and I’d be fine with that result, but ban advocates should be aware that there’s uncertainty no matter what. Regardless of when the FDA finalizes the policy, it will likely take years to take effect. The most important factor for the prospect of a menthol ban is who is president in 2025. If Biden wins, he’ll have four more years to implement the ban. If Trump wins, well, who the hell knows what will happen, but I wouldn’t be surprised if took the opportunity to reverse one of Biden’s signature policies. So, even if you do support a ban on menthol cigarettes, I think there’s a reasonable case for giving Biden the slack to wait until after the election to pursue it.

It’s cliché to say, but this election is far too important to risk on a potentially divisive issue like banning menthol cigarettes, especially if one possible result is that the ban gets scrapped anyway when we end up with Trump back in power. And don’t be complacent; Trump’s prospects for winning are alarmingly real.

I’m not saying that a menthol ban tipping the election to Trump is the most likely outcome or that it wouldn’t be an incredibly stupid outcome, but unlikely and incredibly stupid outcomes are what got Trump elected in the first place. Let’s not do that again.

Update 12/7/23: Publication of the final rule is now officially set for March. Further, the FDA has also scheduled publication of its proposed nicotine standard for April. This is a more preliminary stage of rulemaking but it’s an even more drastic regulation: by capping nicotine in cigarettes at a very low level, it would essentially amount to prohibition. More than 28 million American adults currently smoke cigarettes, so announcing one’s intention to ban them in an election year, with the stakes as high as they are, strikes me as an extremely dangerous strategy.

Some additional links: I wrote a case against a federal menthol ban for Reason back in 2021. For a deeper dive into contemporary tobacco politics, read my book The New Prohibition. And on related issues, I recently reviewed the Netflix docuseries “Big Vape” for the Examiner (ungated link).

Image credit: Photo by Possessed Photography on Unsplash.