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As somebody who has dedicated their life work to protecting and enhancing criminal, racial, human rights, and social justice reform in Louisiana (the state with the most incarcerations in America), I am very concerned about the Federal Drug Administration’s recently announced plan to ban menthol cigarettes.

Over the past few years, America has finally begun to grapple with the damaging effects of our decades-long War on Drugs – and, more importantly, has begun taking concrete steps to fix that damage.

More than 50 years after the War on Drugs was first declared, the U.S. House of Representatives recently approved the MORE Act, legislation that would end federal marijuana prohibition and begin repairing its negative consequences. This follows the passage into law in 2018 of the First Step Act, criminal justice reform legislation cutting unnecessarily long federal sentences and improving conditions in prisons.

Discussions continue around reforming policing – specifically the militarization of local police departments through federal military surplus programs that steadily increased during the War on Drugs.

And all of this comes as many white Americans have seen, for the first time, glaring examples of over-policing of communities of color.

More and more Americans like me are organizing around proven drug policies that prioritize science, empathy, physical and behavioral health treatment such as harm reduction strategies, and basic human rights considerations.

That’s a good thing. Because the prohibition, criminal punishment-style policies of the Drug War cost our country hundreds of billions of dollars, harmed communities of color, destroyed families, and helped make America the country with the highest number of incarcerated individuals worldwide (sending millions of people to prison for low-level offenses) – and failed to achieve any of its policymakers’ stated objectives.

So why is it that, at the same time our country is finally taking needed steps to fix the damage of the Drug War, federal regulators are rebooting those same prohibition-style policies and returning to the same exact path by criminalizing tobacco products predominantly used by Black Americans?

The Biden Administration recently signaled its intent to ban tobacco products… not all tobacco products, though. Conspicuously, tobacco products predominantly used by white Americans would remain legal, regulated, and available.

Only flavored tobacco products such as menthol would be subject to this new criminal prohibition – i.e., the preferred tobacco products of the vast majority of Black users.

Why ban flavored tobacco? That’s a great question and one that federal regulators have not entirely answered.

Is the aim of this proposed prohibition to protect kids’ health? That would be a worthy goal, but the CDC recently released the data from its youth tobacco survey showing tobacco use among young Americans continuing to plummet to historic lows. Menthol has been on the market for years, including while tobacco use has dropped, so it obviously is not a “gateway” product.

Is the goal of this proposed criminal ban to protect the health of communities of color? A new set of Drug War-style prohibitions is a curious way to achieve that goal since it will inevitably lead to over-policing of those very communities. Regulators have pointed to tobacco company marketing (most of it several decades old) aimed at Black Americans. But those regulators fail to address in any way why we should abandon the same scientifically-proven harm reduction strategies that have not worked in addressing illegal drug use in favor of disproven Drug War-era criminal prohibitions.

And while the FDA has claimed that it will not enforce its criminal ban against individuals at the local level right now, they have completely failed to acknowledge that a federal criminal ban will immediately trigger laws on the books in all 50 states – most of which treat violations of federal guidelines quite seriously. Our local law enforcement agencies will once again be given new leeway and responsibility for the opportunity of coming into contact with communities of color, inevitably leading towards more negative interactions between Black Americans and police for minor offenses that were once legal.

The American Civil Liberties Union released a report in 2020 that showed Black people are 3.4 times more likely than white people to be arrested for marijuana possession in Louisiana, despite comparable national marijuana usage rates. Think what will happen when police must enforce a menthol ban when that product is predominantly used by Black people? I think we know the answer.

Leaders ranging from the ACLU and the Drug Policy Alliance, to the National Association of Social Workers and the National Center for Disability Rights, have all raised concerns about this proposed criminal prohibition. To say nothing of the National Association of Black Law Enforcement, National Association of Blacks in Criminal Justice, National Latino Officers Association, and many more.

As America continues to be the number one country in the world for new incarcerations, we can no longer continue to sit silently in the wake of yet another oppressive and biased War on Drugs.

Kim FordKim Ford is a community organizer and collaborates with community leaders in justice and human rights advocacy. She is a co-chairperson of the New Orleans Chapter of National Coalition of Blacks for Reparations in America (NCOBRA).

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