How the FDA's flavored tobacco ban could make my border county less safe

Arizonans look to local law enforcement to keep our communities safe.

That’s especially true today, as we face some of our greatest public safety challenges in decades — from an uptick in violent crime rates and an ongoing opioid epidemic to a crisis along our southern border.

Yet regulators in Washington are about to hand down a new unfunded mandate on local police departments that risks distracting us from addressing these challenges.

In the coming weeks, the U.S. Food and Drug Administration (FDA) is planning to finalize a new rule criminalizing flavored tobacco products.

These flavored tobacco products have, until now, been legal and regulated.

New FDA rule could create an illicit market

As Cochise County sheriff, my department is the chief law enforcement agency covering 6,215 square miles of territory with more than 80 miles of shared border with Mexico.

As I warned the Biden administration last year, this prohibition-based policy will have a major impact on not only my agency, but law enforcement around the U.S. and the communities we serve, because it will create a new and massive illicit market in the very products the FDA is seeking to eliminate. 

States attempting their own criminal bans on these products, such as Massachusetts, are seeing spikes in illicit product sales.

We already face a growing illicit market for tobacco products in the U.S., driven in part by high taxes on legally sold tobacco.

Banning legal sales of currently regulated products would create powerful financial incentives for cartels and criminal networks — both domestic and international — to step in to supply the unmet demand. 

That could embolden cartels, bolster crime

With financial incentives this powerful, the question isn’t whether an illicit market for flavored tobacco will rise, but just how big it will be.

In fact, the U.S. State Department issued a report in 2018 that carefully detailed the many layers of serious crime that illicit tobacco trafficking is associated with, including violent crimes, property crimes, human trafficking and terrorism.

The last thing Arizona needs is an entirely new category of controlled substances capable of generating billions of dollars in new funding for the criminal networks whose threats to society we are tirelessly working to reduce.

While the FDA has claimed that enforcement of its proposed ban would only occur against tobacco makers, rather than individuals, the fact is that all 50 states, including Arizona, treat trafficking in illicit tobacco products as a serious crime, subject to arrest, prosecution and imprisonment. 

Tobacco policy belongs with regulators, not police

Confronted by an influx of illegal products as a result of this new prohibition, law enforcement would now become the menthol cigarette police, investigating and interdicting illicit domestic manufacturing, illegal smuggling at the border and at our ports of entry, illicit distribution within and across state lines, and, ultimately, illicit sales in our communities. 

In these ways, the FDA’s proposal represents an unfunded mandate for law enforcement that will shift responsibility for enforcement of these tobacco products to state, local and federal law enforcement — but without the resources needed to deal with these new responsibilities.

We do not endorse or support tobacco use. It should be applauded that menthol cigarette use, along with other tobacco metrics, are at historic lows.

But tobacco policy belongs with regulators, not police.

There are much better options for reducing tobacco use even further, without shifting these products into the criminal justice system. 

With the many challenges we are facing in our work to keep Arizona communities safe and secure, tobacco prohibition is the last thing we need right now.

Mark J. Dannels is sheriff of Cochise County, Arizona. He has worked for nearly 40 years in law enforcement and has served on the U.S. Department of Homeland Security’s Advisory Council, the National Sheriffs’ Association, the Southwest Border Sheriffs and more.