Biden admin's proposed menthol cigarette ban could become liability in 2024: 'Unintended consequences'

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The Biden administration's proposed menthol cigarette ban could become a thorn in the president's side during the 2024 elections, political operatives planning to run ads attacking him have told Fox News Digital.

The Food and Drug Administration (FDA) initially proposed rules prohibiting menthol cigarettes and flavored cigars in April 2022 to "prevent children from becoming the next generation of smokers" and to "help adult smokers quit." After missing its August deadline, the agency said it remains a top issue, and they are nearing the end of the process.

"Finalizing these two product standards remains a top priority for the FDA," Brian King, the director of the FDA's Center for Tobacco Products, told Fox News Digital. "The posting of both rules on the [White House's Office of Management and Budget] website means they have reached the final step of review for regulatory documents."

The proposed ban has faced worries from critics who say it could lead to heightened border problems with Mexican drug cartels saturating the U.S. black market with the prohibited products. Politico reported that it has also divided Black leaders, with some arguing it would lead to over-policing against the community.

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The Biden administration is nearing a decision to ban menthol cigarettes. (Saul Loeb/AFP via Getty Images)

Political ad-makers, meanwhile, will look to hit Biden over the issue during the 2024 elections. 

"Criminalizing cigarettes as the Biden administration promotes heroin injection sites is bad policy and bad politics," Brian Colas, a Republican operative and former campaign manager to Arkansas Sen. Tom Cotton, told Fox News Digital. "Expect to see targeted campaign ads aimed at shop owners, law enforcement and those impacted by the pending ban."

Several politicians have also come out in strong opposition against the proposed ban, including Cotton, who said the Biden administration's policies are riddled with contradictions and misplaced priorities.

"This administration would make criminals of law-abiding citizens while granting actual felons early release and encouraging illicit drug use," Cotton previously told Fox News Digital. "No wonder Americans have lost faith in an administration that's less interested in public safety than targeting political enemies."

Sen. Kyrsten Sinema, I-Ariz., has also chastised the proposed ban, saying adults are capable of making their own choices and such rules should be left up to the states.

"My general perspective would be that as adults, people can make their own choices, and what the government's job to do is to ensure that we have a market that is open and that products are available that are regulated to make sure that everyone is safe," Sinema said in July. "At the federal level, I believe that it's our job to kind of stay out of that and let states take their own action and manage their own choices."

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Sen. Tom Cotton, R-Ark., adamantly opposed a menthol cigarette ban and has called out the Biden administration over what he calls double standards. (Bill Clark/CQ-Roll Call, Inc via Getty Images)

Some groups have already started hitting the Biden administration over the ban and how it could hurt small businesses. The New England Convenience Store & Energy Marketers Association has launched a campaign to urge candidates to oppose the ban and started advertising in New Hampshire. 

"What has gone up thanks to Massachusetts' ban on menthol cigarettes is the size of the state's illicit market," the campaign's website states. "A recent report by the Massachusetts Illegal Tobacco Task Force found that contraband cigarette seizures skyrocketed from just 5,377 in 2021 to 18,483 in 2022."

"Illicit crime and the influx of dangerous narcotics go hand-in-hand," it continues. "New Hampshire is no stranger to the fentanyl crisis. Recently, U.S. Sens. Marco Rubio and Bill Cassidy have been sounding the alarm on the connection between the Mexican cartels at the heart of the fentanyl crisis who are now looking ‘to exploit black market opportunities' if the federal menthol ban goes into effect."

New Hampshire Republican Party chair Chris Ager said the administration should be more concerned with fixing the border than banning flavored tobacco products.

Sen. Kyrsten Sinema, I-Ariz., also opposed a menthol cigarette ban. (Al Drago/Bloomberg via Getty Images)

"Leave us alone. States and individuals are more competent to decide what we want to do than the Biden administration," Ager told Fox News Digital. "Personal freedom and liberty are important in our Live Free or Die State. If the administration wants to do its job, fix the non-existent border."

The proposed rules have also received praise from some groups, including one backed by former New York City Mayor Michael Bloomberg and his philanthropies, who believe it will save lives.

"These rules represent truly historic action to drive down tobacco use," Yolonda Richardson, the president and CEO of Campaign for Tobacco-Free Kids, told The Hill. "Once implemented, they will protect kids from tobacco addiction, advance health equity and save hundreds of thousands of lives, especially Black lives."

However, some Black leaders, such as Rev. Al Sharpton, believe it will have unintended consequences on the community.

"What we said is, 'Y'all have got to consider unintended consequences.’ Imagine some cop pulling a kid over saying, ‘Where did you buy or get that Kool cigarette?’" Sharpton told Politico in April. "People are not going to stop smoking Newports and Kools because of a rule. They’re going to go and get them from people that go to the street in the black market. Then what happens? That’s all I’m asking."

The ban could take several years to implement following probable court challenges, according to one expert.

Rev. Al Sharpton speaks at Howard University in Washington, D.C., on Oct. 9, 2022. (Brian Stukes/Getty Images)

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"We expect a two- to three-year cycle from the day the FDA passes any rule to the time such rule is finalized after the likely court challenges," Jain Gaurav, an analyst for Barclays, told the Winston-Salem Journal. "We don't expect a menthol cigarette ban from the FDA implemented (if it were to pass) at least until 2026."

The White House did not respond to Fox News Digital's request for comment.