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OPINION: Menthol ban will hurt small businesses and expand black market sales

Craig Allison
Craig Allison
The front of the White House. Public domain image.

So far this year the Food and Drug Administration (FDA) has issued more than 50 food related recalls, ranging from dog food to salad kits. That is what the FDA should be doing — protecting our food chain. 

The FDA also stays busy protecting patients and health care providers from substandard products and ensuring that Americans have access to safe, effective and high-quality medical devices and pharmaceuticals. Again, that is what the FDA should be doing. 

Yet instead of cracking down on the rampant use of fentanyl that is killing thousands of Americans, the agency is going after a long-established, legal and regulated product used by millions of Americans — menthol cigarettes.  

The FDA sent a final rule to the White House, which would ban the sale of menthol flavored cigarettes and cigars nationwide.

First a ban on menthol cigarettes will likely create a black market for menthol cigarettes and cigars. These will be unregulated and pose a greater health risk. We saw what happened when the FDA sought to ban flavored vape products. Many China-based manufacturers are now selling millions of vapes in the United States without getting FDA authorization for their products, which is required of any foreign or domestic e-cigarette purveyor. An outbreak of vaping product use causing lung injury and even deaths started in 2019 among users of illegal, unregulated cannabis vaping products, almost exclusively in the United States.  

Around the world, illegal cigarettes are being seized. A ban could pose greater health risks for menthol cigarette users as bad actors will fill the void, which has happened in California. 

The FDA is trying to adopt California’s failed policies on tobacco. In 2022, California implemented a Flavored Tobacco Ban, and it hasn’t worked. An August 2023 Empty Discarded Pack Survey showed that the rule actually spawned a large, illicit marketplace for such products in the state, according to a study carried out WPSM Group. The flavor ban not only impacted the state budget and hurt small businesses that sell cigarettes, but also resulted in a staggering number of unregulated products being used and sold.  

The other issue is economics.  

Nevada brings in $150 million to $160 million annually from taxes on cigarettes and is the sixth largest source of revenue to the state’s general fund.

Across the board Nevada and local governments stand to lose more than $85 million dollars in tax revenue with a ban on menthol sales. Nevada tobacco retailers derive approximately $217 million from the sale of legal and age-verified menthol cigarettes and flavored cigars annually.

Rural stores account for about 25 percent of Nevada’ tobacco retail outlets. It is these small businesses in rural areas that can least afford a significant loss of revenue if menthol cigarettes and flavored cigars are banned. It is these rural stores that are, in many cases, the only source of dairy and fresh food for participants of the Women, Infants and Children Program. 

The FDA proposal comes at a time when cigarette use is at an all-time low in America. Less than 2 percent of high school students reported using a cigarette at least once during a 30-day period during 2023. Smoking and menthol smoking in the population has decreased, according to the CDC. Educational efforts and enforcement of underage smoking has continued to propel this decrease. 

This action disproportionately impacts small businesses and rural communities in our state. Education and enforcement of existing laws are helping reduce cigarette use. An outright ban is not the right policy move. 

Craig Allison, is president of the Nevada Petroleum Marketers & Convenience Store Association.

The Nevada Independent welcomes informed, cogent rebuttals to opinion pieces such as this. Send them to [email protected].


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