As the retired Special Agent in Charge of NJ Treasury’s Office of Criminal Investigation, my interests lay in creating safe and secure neighborhoods and upholding sound public policy to achieve those interests. That is why the Food and Drug Administration’s plan to ban menthol cigarettes is of immense concern to me as it will position the already burdened and fragile law enforcement system on the front line to impose a public health policy decision made in Washington without any thought to the unintended consequences and impact on public safety. Such a ban may fuel a 21st-century wave of renewed organized crime activity, like what we experienced during the alcohol prohibition which bred infamous east coast crime bosses portrayed in the popular shows “Boardwalk Empire” and “The Sopranos”.
The fictional sagas on TV about mafia families made for great entertainment, yet the reality of those entities today is much darker and more deadly.
Substantial resources are already dedicated to fighting organized crime and terrorism throughout the United States. Banning one-third of the legal tobacco market will be an attractive gift to professional and amateur criminals, who will swiftly take advantage of the cover provided by consumer demand for a ubiquitous and legal product: the cigarette.
They have finally figured out that demand does not disappear when a product is prohibited, and, as criminals well know, the profits are huge.
While the FDA states its focus is on banning the production and marketing of menthol products by tobacco manufactures and not consumer habits, the fact is that where FDA jurisdiction ends, other federal, state, and local jurisdictions commence. It is already a crime in most states to sell or possess illicit tobacco products. Likewise, there is a substantial illegal trade in cigarettes to avoid massive excise taxes intended to curb smoking. According to the Mackinac Center for Public Policy, in New York State nearly 54 percent of the cigarette trade is illegal. States are rushing to legalize marijuana because they cannot control the illegal demand. They have finally figured out that demand does not disappear when a product is prohibited, and, as criminals well know, the profits are huge. Some have pointed to Canada’s ban on menthol as an example of successful public health policy. In speaking with Canadian law enforcement, I’ve learned the exemption for First Nation reservations in Canada is an ever-widening source of contraband menthol cigarettes. While the neighbors to the north have outlawed menthol cigarettes our neighbors to the south have not and will serve as a direct feed of flavored tobacco into the United States! Do we want Federal and State border enforcement, already burdened with multiple public safety and national security issues to be compelled to reorganize their priorities to include interdiction of flavored tobacco at our southern border?
Many in law enforcement sincerely believe that the proposed ban of menthol cigarettes will have far-reaching consequences, and place enormous stress on police-community relations. Given that minority smokers prefer menthol products, and that extraordinary tensions already exist between law enforcement and communities of color, we should remain concerned that this will create a possible new flashpoint and may not be productive for promoting police community relations. We know the consequences that can flow from a simple conflict over, say a menthol cigarette, and explode in a way that reverberates well beyond our streets.
Aside from the social burden placed upon law enforcement, the prohibition of menthol cigarettes will further fuel the existing illicit market.
The profit to be gained, with a lessened likelihood of scrutiny, arrest – and prosecution, makes bootlegging cigarettes simply too attractive for criminal groups to not exploit the gaps. We see today how illegal cigarette trade is easy and profitable, and a low-risk method for organized crime and terrorist groups, to make quick cash and fund their other illicit activities. The U.S. State Department has reported that the illicit trade in tobacco “facilitates other crimes and provides funding for additional criminal activities, including money laundering, bulk cash smuggling, and the trafficking in humans, weapons, drugs, antiquities, diamonds, and counterfeit goods.” High-quality counterfeit cigarettes and cigars that look like the real products have made their way into our country and continue to be a significant challenge to all levels of law enforcement in detection, interdiction, and prosecution.
Internationally, law enforcement has dealt with cigarette smuggling on an ever-increasing scale. Creating a new very low nicotine (VLN) standard and/or banning menthol cigarettes could force the current population of smokers to turn to the illicit marketplace, which will increase exponentially through counterfeit cigarettes manufactured in mainland China, Eastern Europe, and other nations. These illicit markets are controlled by transnational criminal and terror organizations who would utilize existing illicit distribution networks in the US established by organized crime, gangs, and other criminal entrepreneurs.[1] Additionally, a 2021 Inspector General Report on the work of US DHS in screening contraband, including fentanyl, shows an abject failure to keep these unlawful products out of the commerce stream as they come through the Postal Service Bulk Mail Facilities.
As it always has been in American history, the repercussions of prohibition lands in the lap of law enforcement. Law enforcement officers know too well that no matter the best intentions of politicians or regulators, they are far from where the rubber meets the road on the streets. And that is one tobacco road we do not want to take, and one new crime drama we do not want to see play out in our neighborhoods.
[1] “THE GLOBAL ILLICIT TRADE IN TOBACCO: A THREAT TO NATIONAL SECURITY”: https://2009-2017.state.gov/documents/organization/250513.pdf
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Charles Giblin is the retired Special Agent in Charge of the NJ Department of the Treasury Office of Criminal Investigation. Giblin provided instruction to federal, state & international law enforcement. He has lectured before the American Bar Association & National Association of Attorney’s General on revenue law enforcement. He is nationally recognized as a subject matter expert before Federal and State courts in financial crimes, contraband, smuggling, and counterfeiting.
