Black Smokers at Center of New York Fight to Ban Menthol Cigarettes

ALBANY, N.Y. — A push by Gov. Kathy Hochul to ban menthol-flavored cigarettes in New York has become the focal point of a fierce and expensive lobbying fight, pitting Big Tobacco against the medical community.

Caught in the middle are Black smokers, who smoke menthol cigarettes at higher rates than white smokers, and are the main group the ban is meant to help. Decades of aggressive marketing by tobacco companies have caused Black smokers to consume menthol cigarettes, whose cooling sensation on the throat makes them more appealing and addictive.

Altria and R.J. Reynolds, which produce top-selling menthol brands and are the two largest cigarette makers in the United States, have spent hundreds of thousands of dollars on an army of top lobbyists who have argued to members of Ms. Hochul’s staff and dozens of lawmakers that such a ban would be ineffective public policy. The companies have also funneled at least $135,000 since 2020 to a convenience-store trade group that is fighting the ban.

Their opponents, a coalition of public health groups and a national antismoking organization, have spent over $1 million on ads in newspapers, on television and even in Times Square, disparaging tobacco companies and trying to pressure lawmakers to back Ms. Hochul’s proposal.

Well intentioned as the ban may be, it has angered some Black leaders, including a group of ministers who have rallied against Ms. Hochul’s proposal because they worry it could increase encounters between Black people and the police if menthol cigarettes were to go underground and authorities crack down on sellers.

Other Black opponents of the ban suggest it may be discriminatory, a heavy-handed crackdown on the preferred nicotine fix of Black smokers, even if African American men have the highest rates of lung cancer, according to the Centers for Disease Control and Prevention. Some smokers said that if the state banned menthol cigarettes, they would just switch to unflavored ones.

“I don’t see any logic in that,” said Mike Hayes, 53, as he smoked a Newport on Euclid Avenue in Brooklyn’s East New York neighborhood on a recent morning. “Take away menthol cigarettes and it’d be complete hell.”

Across the street, Alexander Harper, 38, talked on the phone with his girlfriend as he puffed on a menthol cigarette. He said he had been trying to quit to no avail and would support a ban.

“As a smoker, you tend to make excuses to continue smoking,” Mr. Harper, a Postal Service clerk. “Stress at work, stress with your girl, dealing with your bill. I need a cigarette.”

The proposed ban would apply to all forms of flavored tobacco, primarily menthol cigarettes but also flavored cigars and cigarillos, as well as flavored smokeless tobacco.

Ms. Hochul wants the ban, and a $1-per-pack tax increase on all cigarettes, included in the state budget, which she continues to negotiate behind closed doors with her fellow Democrats who control the State Legislature. “This is a public health matter,” the governor said last month, adding that the ban was meant to prevent a new generation from going down “the path of a lifetime of smoking addiction.”

Although lawmakers have signaled their support for the tax increase, the menthol ban’s prospects are far less certain, according to four officials familiar with the negotiations.

The issue has divided Black lawmakers, leaving the measure hanging by a thread in the State Capitol and potentially forcing Ms. Hochul to weigh how much political capital she should expend on the ban, as opposed to other policy priorities.

State Senator Brad Hoylman-Sigal, a Democrat who introduced a similar bill to Ms. Hochul’s, said the proposal was “on life support,” and in need of the governor’s strenuous support.

“It’s going to take a herculean effort on her part,” he said. “The big tobacco companies have been masterful at suggesting that to ban menthol is to discriminate against certain communities.”

The debate over the proposed ban has thrust New York to the front lines of a national crackdown on smoking and the influence of Big Tobacco.

In 2021, the President Joe Biden’s administration proposed a federal ban on menthol cigarettes that is making its way through the Food and Drug Administration’s rule-making process, and could be the subject to legal challenges if enacted.

Only two states have enacted bans on menthol cigarettes. Massachusetts became the first in 2019, continuing the decline in overall cigarette sales and smoking in the state, despite menthol cigarettes being smuggled in from neighboring states. In California, where a ban took effect in December, tobacco companies have begun to try to bypass the ban by selling cigarettes that mimic menthol, the latest enforcement challenge for the authorities there.

New York health officials have cast a ban on menthol cigarettes as a mechanism to prevent smoking among young people and to help adults quit. It would affect Black smokers significantly: Nearly 85 percent of Black smokers consume menthol products, compared with 30 percent of white smokers, according to the F.D.A.

“Menthol is the tobacco industry’s version of a spoonful of sugar, not to help the medicine go down, but rather to help the nicotine start the addiction,” Dr. James McDonald, New York’s acting health commissioner, said.

For tobacco companies, there is a lot of money at stake: Menthol cigarettes account for about one-third of all cigarette sales nationwide, even as the smoking population has shrunk to record lows.

Both Altria, the parent company of Philip Morris, which produces brands like Marlboro and Parliament, and R.J. Reynolds, whose portfolio includes Camel and Newport, have activated their sophisticated lobbying operations for the New York fight.

Collectively, the companies have hired more than a dozen lobbying firms, including top Albany shops like Bolton-St. Johns, spending a total of more than $400,000 in January and February, disclosure filings show. The cigarette makers also have year-round contracts with lobbyists totaling over $1.4 million.

Tobacco lobbyists cite the lackluster enforcement of New York’s existing ban on flavored e-cigarettes, which are still available in many smoke shops, and menthol bans elsewhere. They say a ban would simply lead smokers to switch to non-menthol cigarettes.

Altria has exerted its clout in other ways: It has given $174,350 to Democratic and Republican candidates and campaign committees in New York since last year, according to campaign filings.

“Prohibition and tax increases create law enforcement and criminal justice problems, harm vulnerable communities and will lead to losses in projected New York government revenues that fund important programs, like smoking cessation,” Altria said in a statement.

R.J. Reynolds said in a statement that a ban would have little impact on overall cigarette consumption and lead to illegal cigarette sales. “We strongly believe there are more effective ways to deliver tobacco harm reduction than banning products,” the company said.

The coalition supporting the ban includes the American Cancer Society and the Campaign for Tobacco-Free Kids, a leading antismoking group that has received millions of dollars from former Mayor Michael R. Bloomberg. The organization has paid nearly $1.15 million in January and February to one lobbying firm, Pythia Public, for a multimedia, pro-ban ad blitz.

Many of the ads feature heartfelt testimonials from New Yorkers who have lost loved ones to lung cancer, including Hazel Dukes, the president of the state N.A.A.C.P., and a staunch ally of Ms. Hochul’s.

“This is one of the rare times when, on the money side, it’s a fair fight,” said Blair Horner, the chief lobbyist for the New York Public Interest Research Group, a nonpartisan consumer group that supports the ban. “The science on menthol cigarettes is not in question, it’s just the politics.”

Most of the public opposition to the ban has come not from tobacco companies but from the state’s 8,000 convenience stores, which heavily rely on cigarette sales.

“When you’re talking about 30 percent of our sales, I’m going to die on that hill to try to prevent that,” said Kent Sopris, the president of the New York Association of Convenience Stores, a trade group that has spent at least $11,000 on digital and social media ads featuring ominous warnings that a ban would lead to the criminal smuggling of cigarettes and declaring that “prohibition doesn’t work.”

Altria has given the association over $70,000 for lobbying since 2020, and R.J. Reynolds has contributed $66,000 in the same time period — making them among the largest funders, according to lobbying disclosures. The association and Altria are also represented by the same powerful lobbying firm Ostroff Associates.

Big Tobacco defeated a similar proposal in the New York City Council in 2019 by joining forces with Black leaders like the Rev. Al Sharpton, who has been criticized for receiving money from the industry, to argue that a ban would disproportionately affect Black people. (Mr. Sharpton, who has been conspicuously silent this year, did not respond to a request for an interview.)

Black politicians and faith leaders remain split on the subject.

Some, like Rev. Carl L. Washington Jr., of New Mount Zion Baptist Church in Harlem, have argued that it would unfairly criminalize Black and Hispanic smokers, even though the proposed ban applies to sales, not personal possession. The pastor said he had been contacted by lobbyists on both sides of the issue, and had even talked to Ms. Hochul about the ban, but that he had not taken money from tobacco companies, who have been known to offer pastors financial contributions.

“For years, young Black men and women have gone to prison for selling marijuana,” he said. “Now we’re going to prohibit some cigarettes. We do not live in communist Germany or the Iron Curtain, Russia. This is America, where people have a choice.”

Gwen Carr, the mother of Eric Garner, who was killed in 2014 by a police officer enforcing cigarette regulations, has spoken out against the proposal.

Crystal D. Peoples-Stokes, the Assembly’s Democratic majority leader, who is Black and opposes the ban, said it appeared to be exclusive: “If you want to impact people’s health, you should just ban all cigarettes,” she said.

But Assemblywoman Rodneyse Bichotte, a Black Democrat who sponsored the menthol-ban bill in the chamber, said that any economic argument against the proposal is outweighed by the thousands of tobacco-related deaths each year.

The ban holds particular relevance to Ms. Bichotte, the majority whip: Her father died of lung cancer.

“We’re talking about something that’s killing Black people, that was institutionally targeting a community,” she said.