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Consuelo Hernandez: Menthol cigarette ban could lead to over-policing Black, Brown communities

As the Sunnyside School District Governing Board president, an outspoken community activist in the fight for equity, and somebody who has a long history of mentoring at-risk youth, I have some concerns about the FDA's proposed ban on menthol cigarettes.

This is a complex issue for me and many in our community. I strongly support efforts to reduce youth smoking and appreciate that is the motivation behind lawmakers and proponents who support the bill. However, it is worth remembering that similar good intentions helped launch the war on drugs the consequences of that war have been disastrous for communities of color.

Those consequences are largely acknowledged and there is a lot of energy behind fixing the Drug War's damage to Americans of color. In the past several weeks, the U.S. House of Representatives passed the Marijuana Opportunity Reinvestment and Expungement (MORE) Act, and state-level policymakers are following suit acknowledging the disproportionate impact the criminalization of marijuana has had on black and brown people.

Now, federal regulators are about to reboot Drug War-era policies and inflict the same harm on Black and Brown Americans — this time, criminalizing tobacco products predominantly used by people of color.

Over the past several years, civil rights champions have raised the alarm about this Drug War 2.0, including the ACLU, Law Enforcement Action Partnership, the National Association of Criminal Defense Lawyers, the National Association of Black Law Enforcement Officers, and more.

These leaders know what will happen when criminal penalties are triggered in every state around the country by a new federal prohibition. Black Americans ranging from Michael Brown to Eric Garner died after interactions with local law enforcement based on alleged behavior with tobacco products.

And these civil liberties advocates have asked the question that we should all be asking: why should tobacco products predominantly used by Black and Brown Americans be criminalized while tobacco products predominantly used by white Americans remain legal? In the words of columnist Eugene Robinson: "Another reason to consider Black people guilty-until-proven-innocent…"?

President Joe Biden and his administration have been working on addressing the myriad of challenges with which communities of color have been grappling with. The American Rescue Plan provided relief to BIPOC families and businesses struggling in the pandemic; the administration has made historic investments in Historically Black Colleges and Universities; and the administration has made strides to address inequities in the job market, legal system, housing, education, healthcare, and more. The Biden-Harris administration's focus must remain on driving solutions with true positive outcomes and this menthol ban does not fit that criterion.

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There's a better way to protect Americans' health and protect people of color. Federal regulators should learn from history, follow the science, and pursue harm-reduction — proven strategies by-and-for the people that experts say actually work to reduce tobacco use — instead of opening up Black and Brown Americans up to new over-policing.

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