Former ATF assistant director Rich Marianos told NR that the would-be rule would serve as a ‘gift’ to black market sellers.
After ditching a controversial proposal to ban menthol cigarettes last year, the Biden administration is working in its final days to push through yet another contentious tobacco proposal.
Now, the FDA is looking to limit the amount of nicotine in cigarettes. The specifics of the rule, which cleared an Office of Management and Budget review last week, have not been publicly released but are likely to create a very low nicotine product standard that would be lower than the amount of nicotine that naturally occurs in tobacco plants and is contained in cigarettes.
Having passed OMB review, the rule now heads to a public comment period and could be approved by FDA commissioner Robert Califf before the Trump administration takes control of the FDA, according to Axios.
The rule has been in the works since 2022, when an FDA paper published in the New England Journal of Medicine suggested a nicotine product standard could drop the smoking rate to just 1.4 percent by 2100.
“Limiting the amount of nicotine, or at least quantifying the amount of nicotine put in the cigarettes, would be a huge deal to reduce the addictive nature of the products,” David Margolius, Cleveland’s director of public health and a member of the Big Cities Health Coalition, told the outlet.
But critics tell National Review the proposed FDA rule would have many of the same unintended consequences as the abandoned menthol ban: it would turn over the currently-legal cigarette market to bad actors in the illicit market including China and drug cartels and, in doing so, it could hurt the economy and throttle tax revenue.
“The biggest concern is it’s going to expand the black market or the illicit trade market more than ever before,” said former ATF assistant director Rich Marianos, who called the would-be rule a “gift” to criminal organizations from the current administration.
The rule, if enacted, would allow high value targets to make more money by pushing these products on the street, he said, arguing that the drop in nicotine would not get people to stop smoking, but only to smoke more and to likely seek out products from the illicit market to contend with the increase in price of having to double or triple cigarette intake to get the same amount of nicotine.
“If I can’t get booze at the store, where am I buying it from? The truck’s on the street. The guys that are selling it out of the soda shops. We’ve gone through this exercise. We’re smarter than this, but this administration thinks we’re all stupid,” he said.
In fact, high taxes in several blue states have led to an already-booming black market for cigarettes. In New York, 54 percent of cigarettes consumed in 2022 were smuggled into the state. Nearly half of cigarettes consumed in California and New Mexico were not purchased legally either.
And Americans have already seen how the FDA’s restrictions on vaping has impacted the market: as many as 98 percent of vaping products sold in the U.S. are illicit.
The proposed rule could strain already lagging law enforcement resources, pulling agents of the law away from “real crime” to “something that doesn’t have to take place.”
“If this does not pass, we concentrate on bad guys with guns or … terrorists that are making bombs or driving through festivals. Can you imagine if this goes through and now we have to tank counterfeit nicotine products?”
“This is another attempt by this administration to decide what’s in the best interest of the community rather than what we need,” he concluded.
Then there’s also the economic component. The Tax Foundation predicts the policy would effectively act as a prohibition on cigarettes. If the lower nicotine standard were to take effect and reduce legal sales by 90 percent, tax revenues would drop by roughly $33 billion per year.
Just one cigarette product, VLN King, would likely meet the FDA’s requirement, according to the foundation. The group predicts
“Even if users pivoted to legally available alternatives like vaping and modern oral tobacco products, doubling the size of the OTP market, governments across the country would need to fill a nearly $30 billion budget hole,” the Tax Foundation writes.
A separate report from Chmura Economics & Analytics suggests the rule could result in a loss of $8 billion in federal tax revenue and $16 billion in state and local tax revenue, coupled with the loss of more than 154,000 jobs. The national economy would be looking at a loss of $30.6 billion per year, the report found last month.
Ray Starling of the North Carolina Chamber of Commerce argued the new policy is “not rooted in facts and research.”
“It would dismantle an entire industry wiping away hundreds of thousands of American jobs not to mention the billion-dollar impact it would have on our economy and state and local revenues. It’s a last-ditch effort that is out of touch with the priorities of the American people,” Starling told National Review.
In fact, there have been no studies to suggest low nicotine cigarettes are healthier than traditional smokes and, if implemented, the rule would make the U.S. the first in the world with such a restriction. The administration is pushing the controversial rule at a time when smoking rates are at historic lows, according to Gallup.
Biden’s cigarette prohibition is seemingly a kick at Republicans on the way out the door, if one recent study on the political affiliations of smokers is any indication.
While Democrats were more likely to smoke cigarettes than Republicans up until 2009, that has since flipped. Fifty-six percent of nicotine users voted for Trump in the last election, according to a Cygnal poll of 2,200 nicotine users who voted.
It’s unclear if the proposal will take effect before Trump takes office. If the rule advances, Trump, who showed support for the vaping industry on the campaign trail, could pull back on the measure.
The Free Press recently reported Trump “looks set to be the smokers’ president” in part because a subsidiary of Reynolds American, the second largest tobacco company in the U.S., was the largest corporate donor to the Trump super PAC on September.