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Pending legislation to make it illegal for even adults to buy popular products such as menthol cigarettes is regulatory overreach that would do more harm than good.

Americans are using tobacco less than ever, mostly by choice. A law enacted late last year that hiked the legal age for buying tobacco to 21 nationally will help us make further inroads in reducing tobacco use by teens. The Food and Drug Administration is developing new guidelines and regulations to reduce vaping among teens.

Just the same, tobacco is legal, just as alcohol, lotteries, casino gambling and, increasingly, even marijuana are legal — if you are 21 or over. As a society, we let adults make adult-like choices about things that have downsides, but restrict kids from these options. A federal ban on all flavored tobacco presumes to treat adults like kids. 

Ironically, HR 2339 would not protect us from ourselves. It could do the opposite. One thing we learned from the e-cigarette trend is that injuries and deaths among young people were attributed to illegal THC products. Adults who enjoy tobacco should continue to have access to legal, regulated products and not be forced or tempted to turn to illicit alternatives. 

There are additional absurd and unintended consequences. Taking well-selling products off the shelves will hurt some 340,000 businesses licensed to sell them. Convenience store operators will tell you when customers come in to buy a tin of dip or a flavored cigarillo they often pick up a snack or drink. The ban will hit these business and their employees hard.

Fewer retail sales, of course, will mean less tax revenue. Flavored products account for over a third of tobacco product sales. By some estimates, banning them would mean a $100 billion less in tax revenue for local, state and federal government over ten years. Philosophical aversions to taxes aside, these revenues help fund programs such as the Children’s Health Insurance Program (CHIP). At the local level, excise taxes often provide revenue streams for law enforcement. 

Prohibition, which ended 87 years ago, remains a primer on how to lose tax money and create crime but not change behavior. A ban on flavored traditional tobacco products will require more law enforcement, but with less revenue from excise taxes, many already cash-strapped communities will have to divert resources away from other public safety activities or raise new taxes. And do not assume selling flavored smokes or dip on the black market would be a petty, isolated crime. A government report notes that the low-risk and high-reward nature of such activity makes it a popular way to raise and launder cash for other criminal endeavors, including terrorism and human trafficking.

If the goal is to protect kids, the legislation is unnecessary. Raising the legal age for buying tobacco to 21 is working. If the goal is to protect adults and benefit society more broadly, the bill would go in the opposite direction. Congress has better things to do.

Lew Dodak is a former member of the Michigan House of Representatives who served as its Speaker from 1989-92.

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