Welcome to the Nicotine Prohibition Era

In July 2014, five New York City police officers approached Eric Garner on a Staten Island sidewalk and accused him of illegally selling “loosies”—individual cigarettes without a tax stamp. Garner refused to be handcuffed and there was a fight. Officer Daniel Pantaleo put Garner into a chokehold and pushed him to the ground, face-first. Garner, who had protested 11 times and couldn’t breathe, lost consciousness within an hour. This sparked national outrage, and raised awareness about the Black Lives Matter movement.

Since Garner’s suicide, the US has made tobacco-based products more restricted. This puts illicit market participants in conflict with law enforcement. The government is increasingly imposing a ban on nicotine, even as it acknowledges the devastating effects of the war against drugs.

Police reprimanded two teens who were caught smoking on Ocean City’s boardwalk, violating a local ordinance, in separate incidents that occurred June 20, 21. The police tased two other teens while one of them was dropped to the chest. Maura Shealey, Massachusetts Attorney General, announced that a distribution ring was broken up for marijuana, flavored tobacco and flavored ecigarettes. Samuel Habib faces five years imprisonment for tax fraud. Healey said that flavor tobacco and vaping products can be addictive and dangerous for young people. They have been banned in Massachusetts.

It is legal to buy and use tobacco for adult consumption in the United States. However, the public policy surrounding nicotine delivery systems shifts from regulation and taxation towards explicit prohibition of all products. Some countries have already banned menthol cigarettes. The Food and Drug Administration (FDA), however, is expected to ban similar products at the federal level. Also, local regulations on ecigarettes give a hint of what could happen if vaping is still being regulated by the FDA. Also, the FDA considers imposing nicotine limits on cigarettes. This would amount to prohibiting vaping.

E-liquids, tobacco and e cigarette products are becoming illegal. Law enforcement agencies will become more aggressive in their efforts to stop production, distribution, sales and individual usage. Any such interaction can lead to freedom being taken away, even violently. It is possible that American tobacco policies will lead to a more regressive war on drugs than the current crackdown against psychoactive substances.

From Prohibition to Regulation, and back again

It’s not easy to believe that tobacco can be considered an illegal drug in the same country as Joe Camel or the Marlboro Man. It has been done before.

In the Progressive Era of around the mid-20th century cigarettes were much more prominently targeted than alcohol. Carrie Nation, the Anti-Saloon League, and Carrie Nation were joined by the Anti-Cigarette League. Lucy Page Gaston and Lucy Page Gaston were equally vocal. Even though anti-smoking groups never achieved national prohibition like the temperance movement, they still constituted a powerful political force.

“Between 1890 & 1930, 15 states passed laws banning alcohol [the]Use, sale, manufacturing, possession [of cigarettes]”, along with no less than twenty-two additional states and territories that considered such legislation,” Cassandra Tate’s 1999 book notes. Cigarette Wars. By 1920, only Rhode Island and Virginia were legal for minors to legally purchase cigarettes. Many cities imposed additional restrictions. They made it illegal for women in public to smoke, outlawed smoking near school buildings and banned certain types of advertising. Smokers of cigarettes were subject to discrimination at work, the courts, and everyday life. A New York judge in 1904 sentenced a mother to thirty days imprisonment for her smoking habits.

These prohibitions, like alcohol, did not endure. Governments applied these laws selectively and rarely because they lacked the will to enforce them consistently. Due to the return of soldiers from World War I, and the stigma of women smoking, the growing tide of cigarettes was difficult to control. Generally, by the 20th century states had decided that it was more convenient to tax cigarettes and ban them than to ban them.

The anti-cigarette movement failed to take root until the 1950s when scientists proved that smoking was linked to lung cancer. This culminated in 1964’s landmark surgeon general report. Modern anti-smoking policies, now based on solid medical evidence, include warning labels on cigarettes, education efforts, marketing restrictions, tax exemptions, exise taxes and bans at specific locations on smoking.

American smoking rates fell steadily since their mid-century high. Today, only 14 percent of Americans smoke cigarettes. This is a significant drop from the 50s when nearly half of them smoked. The product was legal and physically available for adults even though taxes increased and venues that were friendly to smoking disappeared over the past 50 years.

The 2009 Family Smoking Prevention and Tobacco Control Act was passed. It gave FDA the authority to regulate tobacco products for the first times. A ban on flavored cigarettes was also made by the law, except for menthol which accounts for over a third today of the U.S. market. The FDA had been considering extending the ban on flavor to menthol, which theoretically would reduce nicotine levels to negligible amounts. This has led to the tobacco industry spending a lot of time preparing to see the fall of the hammer.

This has been the case so far. The Tobacco Control Act banned niche products like clove cigarettes. They were simply moved to “little cigars,” which are less restricted by law. The FDA has not taken any products off the marketplace so far. They tend to have little commercial importance. The agency boasted in 2014, for example, that it had banned four of Jash International’s tobacco products—a type of small cigar known as “bidis” that are popular in India and southeast Asia but very niche in the United States. It turned out that the company stopped exporting the products to the U.S. many years before.

Micah Berman from Ohio State University, law professor said in an obituary on the Tobacco Control Act: “The Faltering Promise of FDA Tobacco Regulation” that the anti-smoking community had been optimistic about what it would achieve over the past 10 years. Tobacco companies—specifically Altria, which supported the 2009 law—had the more accurate assessment, anticipating that the FDA would insulate cigarettes from competition and keep them on the market as legitimate, regulated products. The law emphasizes that the one purpose of the law is to allow the sale of tobacco products to adult consumers.

The federal bureaucracy’s wheels grind slowly. Mitch Zeller is the outgoing Director of FDA’s Center for Tobacco Products. He indicated that there will probably be rules to restrict cigar flavors and ban menthol in cigarettes in spring 2022. State and local governments continue to pursue their own regulations, such as a 2020 California ban on menthol cigarettes. This is currently being held pending the result of the November ballot initiative.

The District of Columbia and Massachusetts already have menthol bans that cross the threshold of regulation to prohibition. Federal bans would remove a product that is loved by approximately 10 million American smokers from the legal marketplace. Also, a federal nicotine cap would be a de facto ban, which restricts the product that makes cigarettes attractive. It is equivalent to permitting only non-alcoholic beer and decaffeinated espresso. Legal and commonly used tobacco products have been placed on the path to becoming contraband for the first time in history since the Progressive Era. This is because there are far less dangerous competitors.

Prohibition of E-Cigarette Use

It is easy to see why prohibition appeals. It is widely believed that cigarettes are the most harmful drug in the universe, with an estimated 440,000 premature deaths annually in the U.S. alone and over 7 million in total worldwide. You might think that they would be gone if a regulation or law was passed. America instead finds itself stuck in an absurd, unlogical, and illegal situation. Cigarettes are still legal. However, nicotine vaping products pose far less health risk than cigarettes. This is due to FDA’s restricted resources and discretion.

The FDA attempted to prohibit all imports of e-cigarettes from the United States in 2007, when they first became popular. The 2009 order was stopped by a federal appeals court. In 2010, the U.S. Court of Appeals, District of Columbia Circuit ruled that ecigarettes would be regulated by the FDA as tobacco products and not medical devices. The delay gave vaping time to develop, grow, and be established in the U.S.

The FDA took August 2016 for a “deeming” rule to declare e-cigarettes under its jurisdiction. Although vaping can be safer than smoking, regulations for vapor products are more complicated than those for cigarettes. Because the Tobacco Control Act grandfathered products in 2007 and left conventional cigarettes essentially unaffected, Because the e-cigarette industry was still relatively new in 2007, vaping products need to be subject to a stricter “pre-market review”.  The FDA must be convinced by manufacturers that their product is safe for public health.

So far just one product—R. J. Reynolds Vapor Company’s Vuse Solo, along with two tobacco-flavored cartridges for that device—has met that test. The FDA stated that all the other products are being “marketed illegally” and subject to FDA enforcement actions. Out of 2,000,000 applications the FDA had received up to the September 2020 deadline it rejected 1,500,000, sometimes with a minimal review.

Many health experts, including FDA, agree vaping can be safer than smoking. They also believe that switching from cigarettes would make a difference in the lives of smokers. A widespread switch from smoking to vaping could prevent millions of premature deaths, according to credible estimates. Because of their novelty and high adoption among teens, e-cigarettes are subject to excessive media attention and strict legislation that is far beyond the likely risks. Much of the public now mistakenly thinks vaping is just as dangerous as smoking—or even more dangerous.

A rash of vaping-related lung injuries caused by vaping prompted a lot of panicking, legal action, and scary headlines in 2019. While the cause of the epidemic was quickly identified as contaminants from the illegal market for marijuana vapor products (mostly cannabis), opponents to nicotine vaping used the opportunity to push a prohibitionist agenda. The FDA had concerns about the rise in youth vaping and banned all flavor other than menthol from cartridge-based vaping products like the Juul. Some municipalities also ban menthol vapes. San Francisco banned the sale of all flavored e-cigarettes, along with vaping products that had not received FDA approval—which, at the time, was all of them.

Gov. was the most extreme of all political responses. Gretchen Whitmer, DMich.) issued an emergency order prohibiting the sale and possession of flavor e-cigarettes. A person found possessing four or more flavors of flavored ecigarettes can face up to six months jail. Michigan courts granted relief to vape shop owners. They ruled Whitmer failed to show that there was an emergency which would allow them to deviate from their usual rules-making processes. Whitmer’s attempt to issue such an order is a sign that vaping threats should not be dismissed.

Echoing the Progressive Era crusade, there is a proliferation of bans in place and state on e-cigarettes The campaign against cigarettes was also motivated by moral panic and genuine concern for children’s welfare. Today’s bans are often more effective and leave cigarettes available, thereby turning harm reduction upside down.

The FDA was required by a court to review all vaping products applications no later than September 2021. This deadline has been missed without consequences. The FDA’s approval of adult-vaper flavors is one of the most contested issues. According to industry experts, the FDA will ban any non-tobacco flavor except menthol. Prior to widespread restrictions, surveys of adult vapers—including many who had completely stopped smoking—revealed that they preferred flavors other than the ones the FDA seems inclined to allow.

All vaping companies, except a handful of them, will close if there is not a drastic reversal by the FDA. Independent vape shops will be closed and consumers won’t have access to customized components or a variety of nicotine levels. While a handful of products—probably closed systems like Vuse Solo in tobacco and perhaps menthol flavors—are expected to remain on the market, federal prohibition is likely the new reality for nearly all vapor products in the U.S.

Prohibition tipping point

18th Amendment to the Constitution and its accompanying National Prohibition Act (popularly called the Volstead Act) made it illegal for alcohol to be sold in the United States. Federal prohibition of drug use began in “tax” laws that were enacted in 1937 and 1914. It was later codified by the 1970 Controlled Substances Act. Tobacco has been criminalized slowly, through both federal and state regulation. These restrictions, taken individually, may not seem to have any significant consequences. Their cumulative effects could be as disastrous or worse than prohibitions in the past, including illicit trade and organized crime.

Five states—California, Massachusetts, New Jersey, New York, and Rhode Island—have banned the sale of flavored e-cigarettes. There are more than 300 places that have already imposed restrictions on the sale of nicotine or flavored tobacco. Beverly Hills banned all tobacco products and e-cigarettes in 2019. However, exceptions were made for its luxurious hotels and cigar lounges. The history of regulation on smoking suggests that what began in California could soon be spread to other states.

Already, these restrictions are creating large black and grey markets. This process will accelerate if FDA follows its current path. Ethan Nadelmann (founder and ex-executive director of Drug Policy Alliance) says, “I believe that people involved in tobacco control, harm reduction, and other communities, have grown kind of comfortable how to deal with an illicit marketplace.” But I believe they don’t realize that it is possible to tip the scales if you continue pushing more market participants into underground markets, or into the unregulated prohibitionist market. The stricter the prohibitions, higher are the profits.

The American Civil Liberties Union (the Law Enforcement Action Partnership and the National Association of Criminal Defense Lawyers) have criticized proposed bans of menthol cigarettes. Men of color smoke disproportionately. The progressive goal of decreasing police conflicts with minorities is clearly undermined by new restrictions that restrict what people can put in their bodies.

The advocates of restrictions claim that the legal ban on cigarettes will allow smokers to get rid of a dangerous addiction. Robert N. Proctor from Stanford is a prominent advocate of tobacco prohibition. Proctor prefers to use the term “tobacco prohibition” instead. Ablehibition. In his 2012 book, he writes: “It’s no longer trendy to talk about magic bullets in medicine.” Golden HolocaustHowever, we have the magic bullet that requires only the pen stroke to make it work.

Proctor rejects any comparison to prohibition of alcohol. Proctor says that alcohol and tobacco are quite different. The most significant difference between alcohol and nicotine is that it is not a drug for recreational purposes. Many people like to drink, and most do so responsibly with little or no harm to their health.…They are not addicts, which means that apart from a tiny minority of abusers, they choose to drink. Prohibition didn’t succeed because of this. People like to drink. and can usually do so responsibly and in moderation. The situation with tabacco is very different. The use of nicotine isn’t for recreational purposes. Most people who smoke wish they didn’t, and most smokers (90 percent) regret ever having started.…Most smokers do not enjoy it; they smoke because it relieves their cravings, and they don’t feel they can endure the pain required to quit.”

Proctor’s assumption are questionable. More accurate is to state that smoking and addiction are both real And enjoyable, and that regret is tied to recognition of its potentially deadly health effects. You would find patches or gums more effective in helping smokers quit. In randomized controlled studies, e-cigarettes performed better than other nicotine replacement treatments because they more closely replicate the enjoyment of smoking.

To make matters worse, the tobacco ban has not been a panacea. It has been tested and failed many times throughout history. It failed in Bhutan, a tiny South Asian nation that has long been a model for national prohibition. After having banned tobacco products in 2010 the Bhutanese government had to admit that there was a strong cross-border illegal trade which could have led to the COVID-19 pandemic. The policy was repealed in 2020 due to concerns over virus transmission.

The Peaceful Prohibition

It is a custome lothsome for the eyes, hatefull towards the nose, harmfull to braine and dangerous to lunges. The blacke stinking fume of it is neerest similar to the terrible Stigian smoke from the bottomelesse. This is how King James I of England described smoking, in his 1604 treatise.  Tobacco CounterblastHis famous tract encouraging English smokers to quit. After failing to convince the English, two decades later, he instituted an import monopoly for royalty to make a profit from this crop. Since then, rulers and reformers have shared the king’s disappointments: The dream of a smokeless society is just out reach. People’s determination to continue smoking has made their noble goals impossible.

Advocates of smoking bans believe that the modern regulatory system will be able to succeed in places where dictators have failed. Maybe they’re right. With a stroke of the pen, we can end nicotine or tobacco smoking.

Let’s not forget that these people may be mistaken. This situation is likely to be complex, as evidenced by past experience. One thing is to have high-profile companies like Juul or Philip Morris in San Francisco, and another. It’s quite another to exercise control over manufacturers of “illicit whites”—cigarettes produced outside the formal system and in disregard of government regulations—in Belarus and Yunxiao County, China; importers supplying a diffuse web of disposable vaping products in Los Angeles; or shady guys hawking flavored vapes on Snapchat.

It seems that the federal government is poised to banning menthol cigarettes as well as to restrict almost all vaping products. FDA could also require near-zero nicotine content in combustible cigarettes. These policies have not been implemented fully at all, least at the federal level. They are still viable options for progressive policy advocates and -regulators. Each one would be an experiment in prohibition. Authorities will have to choose between strict enforcement and libertarian concerns about criminal justice and policing once such policies are in place.

One optimistic scenario suggests that bans will only be used as regulations commercially, restricting state interaction to retailers and manufacturers. The more likely scenario is for low-level consumers and suppliers to be caught up in criminal justice. Criminal penalties will apply to dealers who knowingly enter the federally-exempt zone.

“All states treat unlicensed sale of tobacco products as a crime—usually as a felony punishable by imprisonment,” the American Civil Liberties Union and two dozen other concerned organizations noted last year in a letter to Secretary of Health and Human Services Xavier Becerra and FDA acting Commissioner Janet Woodcock. The final decision will not place tobacco policy under the control of regulatory agencies, but rather police policing. We know from our experience that prohibition of alcohol, drugs, and cannabis is an impending policy catastrophe. Black communities and others will bear the brunt.

Nadelmann points out that tight restrictions on tobacco can be criminogenic. They force buyers and sellers into illegal markets. They create crimes where there was none before. Many small-time dealers will likely be attracted to illicit trading, even though possession of tobacco products is still legal. They will be subject to police harassment, possible violent confrontations and arrest. Based on what happened to the drug war and crackdowns against “loosie sales”, the effects of these new restrictions will be most severe on minorities and those with modest incomes.

Richard Marianos, an ex-assistant director of the Bureau of Alcohol, Tobacco, Firearms and Explosives, is now a Georgetown University professor and warns these policies will also increase violence against non-state actors. Illicit vendors who sell valuable contraband or rely heavily upon cash are targets. Marianos states that it is forcing tobacco dealers to get guns because of the high amount of money being traded. Black market profits will bring in gangs as well as other criminal organisations. High taxes already create problems, but prohibitions will only make them worse.

They are not difficult to predict and they can be easily overcome. But advocates for tobacco and nicotine bans are frequently activists or politicians, who otherwise are keenly aware and aware of prohibitionist failures. Nadelmann notes that “You have Mitt Romney, Republican governors, and a whole host of other people.” But, in general, most of the energy comes from the progressive end. It’s even more troubling to me since many of these politicians are my friends on legalizing medical marijuana, legalizing pot, safe injection, reducing prisoner, sentencing, and all that stuff. It seems like all of those principles have been abandoned.”

Tobacco in a Free Society

Michael Russell, a noted tobacco researcher and author of the famous observation “People smoke for nicotine but die from the tartar,” in 1976. There were not any nicotine delivery systems that could compete with combustible cigarettes at the time. It is now not true. The current products offer a range of risks, including e-cigarettes and Swedish snus. They are promising alternative options with the potential for being far safer than smoking but still offering consumers a lot of appeal.

In the United States, abstinence is a prevailing mindset. This has resulted in misinformation, including alarmist media coverage and regulations prohibiting companies from sharing truthful information about health. Some cases even lead to product bans. It is important that the U.S. learns from places like Scandinavia where safer products rapidly replace smoked cigarettes, and England where vaping is actively promoted by health services as a way to quit smoking. America is still not able to fully harness the benefits of harm reduction in order to prevent smoking-related death.

Russell’s assertions were not correct. There is more to vaping than nicotine. People enjoy vaping and smoking, so it would be a violation of their rights to take that freedom away. We should be skeptical about whether it is reasonable for the state to force people into vaping or smoking, regardless of the reasons.

The tension between prohibitionist nicotine and tobacco policies and the progressive need to prevent people from smoking is evident in both liberal concerns for individual freedom and protection against abusive policing. The alternative—embracing harm reduction while respecting adult autonomy—can lead to a world in which far fewer people die from smoking, but it will not offer the satisfaction of destroying the tobacco industry or ending smoking forever. Experiments with previous prohibitions on tobacco, alcohol and other drugs suggest that any coercive attempts to reach those goals will be unsuccessful, causing considerable misery.