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The paradox of legalizing marijuana yet prohibiting flavored tobacco

How can you end the prohibition on marijuana to promote racial justice yet look to repeat the mistake with a ban on menthol cigarettes?

Menthol flavored cigarettes are displayed in a store in New York City.
Menthol flavored cigarettes are displayed in a store in New York City.
REUTERS/Lucas Jackson

Marijuana policy reform, tobacco harm reduction and racial justice are all at the center of the fight for (or against) three Minnesota bills: HF 904, SB 1271, and HF 600.

As former director for the Drug Policy Alliance in Colorado and years as a police accountability advocate, I assure you the effort to legalize marijuana while also prohibiting flavored tobacco is at odds with solution-based logic.

Racial justice

Gov. Tim Walz has expressed that he favors ending the marijuana prohibition, and last month he called on lawmakers to pursue the legalization as a means to boost the economy and “promote racial justice.”

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So, although the governor cites a boost to the economy and racial justice, he and many others miss the overall goal of legalization — to address marijuana policy from a criminal justice and public health perspective, as well as the racial justice impact. However, by doing so, he presents another question: How can you end the prohibition on marijuana to promote racial justice yet look to repeat the mistake with a ban on menthol cigarettes?

According to the Minnesota House, Black and white Minnesotans consume cannabis at similar rates, yet Blacks make up 30% of cannabis arrests while representing 5% of the population. This reveals Blacks are targeted for their marijuana use, and whites use the drug with little to no concern of the police.

Similarly, studies show that due to either higher taxes or a possible statewide ban, the resulting illegal sales of menthols are more likely to be concentrated in communities of color. This results in public safety issues, greater police presence, citations, fines, and arrests for selling a product that for 50 years has been legal. There are unintended consequences to being Black and in possession of tobacco or selling loosies, and we do not need another George Floyd nor Eric Garner.

Marijuana policy reform

As mentioned above, legalizing marijuana simply allows the Legislature to bring the product above ground, add much-needed regulations, and thus further tighten the safeguards and roadblocks around youth access.

Art Way
Art Way
This same logic should apply to tobacco: Keep these products above ground, where they are tightly regulated with restrictions that allow access to only adults who choose them.

Prohibition is a close-your-eyes and bury-your-head-in-the-sand approach to drug policy. Those who support blanket prohibitions of popular substances are wishing on a star that somehow the substance will magically disappear. Did alcohol and marijuana magically disappear during their prohibitions? The advocates of HF 600 know this, yet the advocates of the flavored tobacco bans are choosing to ignore this clear causality. I agree with legislators who say that support for both bills is “incredibly inconsistent.”

Tobacco harm reduction

The cannabis bill includes many safeguards against underage use. Minnesota currently has a 21+ mandate for tobacco sales, and many jurisdictions only allow certain products to be sold in adult establishments. These safeguards are solutions to youth access that are driving down access to tobacco products.

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Before passing a blanket ban, legislators in Minnesota should bolster its state laws and allow these tighter regulations to take root. Besides, federal regulations such as the PACT Act prohibit online sales of vape products from coinciding with the ban on online cigarette sales. Decision-makers are finally placing tight regulations on an industry that previously took full advantage of a lax regulatory environment. The marijuana industry has never received a lax climate and was tightly regulated from its inception.

A compromise is prudent, one that relies on further advertising and online restrictions, additional restrictions on statewide adult-use establishments, and most important, targeted behavioral health and prevention dollars to address the issue head-on. I agree with proponents about the public health impact of tobacco but disagree on how to manage it.

I urge the Minnesota Legislature to do the hard work of developing a nuanced policy that addresses each of these areas, from a public health and public safety standpoint, rather than a blanket prohibition which leads to more racial injustice issues while also increasing the state’s current illicit market ranking.

Art Way is a national drug policy advocate and former director of the Colorado Drug Policy Alliance.

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