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COLUMN: Biden Admin Fueling Illicit Market Through Tobacco Policies

The following article is an opinion piece and reflects the views of only the author and not those of TheGeorgiaVirtue.com

By: James D. Newman, Chief, ATF National Academy (retd.)
U.S. Department of Justice 
Bureau of Alcohol, Tobacco & Firearms


On Thursday, October 6, President Joe Biden announced a full, complete, and unconditional pardon of all United States citizens and lawful permanent residents who committed the offense of simple possession of marijuana in violation of the Controlled Substances Act.  In remarks about the pardons, Mr. Biden noted that marijuana is now legal in many states and that while white, brown, and black Americans use marijuana at similar rates, racial minorities are arrested, prosecuted, and convicted of simple possession at disproportionately higher rates.

But if the Biden administration believes that the illicit market for marijuana created social injustice, why is his administration fueling an even bigger illicit market through its tobacco policies? 

In June, the Biden Food and Drug Administration announced its intent to lower nicotine in cigarettes by up to 98% and ban menthol flavored cigarettes.  Such a dramatic move would be tantamount to a ban on cigarettes and likely force many of the 30 million Americans who still smoke to purchase cigarettes from the illicit tobacco trade.  In New York where cigarettes still contain nicotine but are subject to the highest tax in the nation at $4.35 per pack, it is estimated that more than half of the cigarettes sold are illicit.   Make no mistake, the communities unfairly impacted by marijuana prosecutions will be the same communities disproportionately incarcerated for illicit tobacco consumption.  

Banning nicotine and menthol in cigarettes will also fuel threat networks like drug traffickers and terrorist organizations.  The State Department has called the global illicit tobacco trade a threat to national security and it’s been reported that these illicit revenues are finding their way into terrorist organizations. According to the same report, “Mokhtar Belmokhtar – a former Al-Qa’ida operative and Islamic Maghreb (AQIM) senior commander and the founder of the Signed-in-Blood Battalion – was known as “Mr. Marlboro” because of his involvement in cigarette smuggling as a means to raise funds for his terrorist organization.”  

As an undercover agent for the ATF, I saw first hand how the illicit cigarette trade created lower risk opportunity for gangs and organized crime to generate windfall profits, and it is happening right here in Georgia despite our state’s relatively low excise tax on tobacco.  

About a decade ago, an organized crime ring was busted trafficking illegal cigarettes in Gwinnett County. In June of this year, federal officials in Atlanta caught 19,000 counterfeit vaping devices coming from China to be sold on the streets. But criminal smugglers are a lot like cockroaches – for each one you quash, you know there are many more you never caught. 

The better policy course for tobacco regulation – and the one that should be embraced by the Biden FDA – is harm reduction, a public health strategy in which risky behaviors are replaced with less risky alternatives.  In the case of tobacco, the harm from cigarettes comes from the combustion of tobacco, not from the nicotine as nicotine is not carcinogenic.  Therefore, the appropriate policy is to encourage smokers to switch to alternatives to combustible tobacco, like vapes and e-cigarettes or nicotine lozenges, patches, and gums.  Indeed, research suggests that vaping represents just 5% of the health risk of smoking cigarettes. 

This makes the FDA’s approach to cigarettes even more perplexing.  Reducing the amount of nicotine in cigarettes will not only fuel the illicit cigarette trade, but those who consume reduced nicotine cigarettes will ultimately consume significantly more carcinogenic smoke to receive the same nicotine dose they have become accustom. 

None of this makes sense politically or scientifically.  If the past 50 years of marijuana policy have proven anything it is that prohibition does not work.  It certainly will not be effective for a product that’s been legally sold for more than 100 years.  Likewise, forcing the consumption of more risky products – like reduced nicotine cigarettes – while shunning less risky products such as vapes makes little scientific sense.  

Sadly, the Biden FDA’s approach to tobacco regulation bears more resemblance to the hysteria of reefer madness than the evidence-based approach to regulation the agency is known for.  If we are to follow the science, tobacco harm reduction is the regulatory strategy that will offer the best public health outcomes. 

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