Prohibition Has a Bad Track Record

FDA should stop its plan to ban menthol cigarettes and flavored cigars. 

Prohibition Has a Bad Track Record

July 2022   minute read

By: Anna Ready Blom

On January 17, 1920, the production, sale and distribution of alcohol was prohibited in the U.S. Supporters of prohibition expected people would stop drinking if alcohol was completely banned. What they didn’t anticipate was that many people would instead turn to the black market for booze. Out of prohibition emerged a booming illicit market that included illegal production (better known as bootlegging) and a proliferation of speakeasies. It also included an uptick in gang-related violence and organized crime. By 1933, prohibition was over because it created a far greater risk for communities than the legal sale of alcohol. 

Fast forward 102 years and the Food and Drug Administration (FDA) is proposing prohibition of menthol cigarettes and flavored cigars. Prohibition as policy assumes current users of the products will quit or switch to regular cigarettes or other tobacco products such as e-cigarettes. What FDA’s proposals fail to fully consider is the opportunity it will create for an illicit market. 

Today, menthol cigarettes account for 34% of all cigarette sales, and flavored cigars account for 51% of all cigar sales, according to NACS data. These numbers demonstrate a significant user base for these products in the tobacco category. As the FDA acknowledges in its proposals, these products are addictive in nature. To remove them from shelves means that many current users who cannot quit or will not switch to other tobacco products will search for the products from illicit sources. And illicit sellers will seize the opportunity to profiteer from the bans, much like bootleggers in the 1920s. 

“Illicit sellers will seize the opportunity to profiteer from the bans, much like bootleggers in the 1920s.


Prohibition of menthol cigarettes and flavored cigars will push legal sales to the illicit market, undermining the efforts of responsible retailers. Today, licensed tobacco retailers are responsible for ensuring that tobacco products do not get into the hands of minors. They are also responsible for only selling products that are regulated with respect to their contents, fire safety and other attributes. Legitimate retailers also collect and remit the appropriate taxes on those products. Illicit sellers do not abide by any of these regulations. 

Convenience store retailers invest millions of dollars to ensure that they comply with the law when it comes to selling age-restricted products. These investments include training employees on how to check IDs and how to safely stock and store the products. In fact, many retailers in the industry use advanced ID scanning technology and have a third party conduct stings of employees to ensure they’re checking IDs. If the FDA removes menthol cigarettes and flavored cigars from convenience stores, where customers must be 21 years or older to purchase them, it will only increase the likelihood of minors accessing them. Illicit sellers do not check IDs; they will sell products to anyone with money to buy them. 

Along with the risk of increasing minor access, the illicit market poses a greater risk to health because counterfeit products have not undergone FDA scrutiny. Congress passed the Family Smoking Prevention and Tobacco Control Act in 2009, putting the regulation of tobacco under the FDA’s purview, including the manufacturing, distribution and sale of these products. The tobacco products sold in convenience stores are authorized by the agency. Counterfeit cigarettes, on the other hand, avoid this scrutiny and are often smuggled into the United States. The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) states, “While all cigarettes are dangerous and are known to cause disease, counterfeit cigarettes often contain higher levels of tar, nicotine and carbon monoxide than genuine cigarettes, and may contain contaminants such as sand and packaging materials. Counterfeit cigarettes pose a greater health risk to consumers and cost taxpayers millions in lost revenue.” While the FDA argues that prohibition will lead to greater health benefits, the agency did not fully weigh the impact to individuals who buy more dangerous products from the illicit market. 

The FDA’s proposals fail to consider the full effects prohibition will have on the illicit market and the economic impact to legal sellers today. A regulation that causes legal retailers to lose sales to illegal sellers causes undue economic burdens for these businesses. These regulations do not seem to account for those losses, in particular the losses of sales of non-tobacco items that are purchased when people buy menthol cigarettes or flavored cigars. 

When looking to finalize its proposals, the FDA needs to consider the impact prohibition will have on legal tobacco retailers (especially small businesses), their customers and their communities. The agency cannot claim to have done this without fully addressing the consequences of the illicit market. 

NACS is filing comments on behalf of the industry and encourages retailers to send their own comment letter. Download a template letter at

Anna Ready Blom

Anna Ready Blom

Anna Ready Blom is NACS director of government relations. She can be reached at [email protected].

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