A bill to restrict tobacco flavors could have a closer vote margin Friday than House leaders would like amid frustration from Congressional Black Caucus members that the bill could lead to unintended consequences in black communities.
Tobacco-state Democrats also argue the bill would limit choices for adults who choose to use a legal product.
The bill was written in response to the dramatic rise in youth e-cigarette use, but in addition to placing new restrictions on sales of e-cigarette flavors and advertising for those products, it would also ban flavors in tobacco products like cigars, as well as menthol cigarettes.
Some members say the bill’s ban on menthol products would unduly punish black smokers. Nine in ten black smokers prefer menthol-flavored products, according to the Truth Initiative, an anti-smoking advocacy group that supports a menthol ban.
While a handful of House Republicans are expected to support the bill, that might not be enough to avoid a close vote given opposition from CBC members, tobacco-state lawmakers and others.
On Thursday, 11 Democrats voted against the rule providing for floor consideration of the bill, which was adopted by 210-200. The "no" votes included members outside of the CBC or tobacco states such as Ben McAdams of Utah, Alexandria Ocasio-Cortez of New York, Katie Porter of California and Rashida Tlaib of Michigan.
“It's my understanding that there's still some areas of disagreement amongst some, but I don't know what the numbers are to the extent that it could be problematic as it relates to hitting 218,” Democratic Caucus Chairman Hakeem Jeffries told CQ Roll Call. The New York Democrat said he personally plans to vote for the bill.
“I think we're moving in a very positive direction, and we're going to gather about those numbers shortly,” Chief Deputy Whip and CBC member Shelia Jackson Lee said. The Texas Democrat is supporting the bill and said she will be whipping support for it.
Notably, Majority Whip James E. Clyburn is said to oppose the bill, according to sources who spoke on condition of anonymity in order to be candid.
The South Carolina Democrat said he never told anyone he opposes it but he also wouldn’t say he supports it. “Just say I've expressed some concerns," Clyburn said.
North Carolina Rep. G.K. Butterfield, a former CBC chairman and current chief deputy whip, said he is not clear on the formal whip count but he has had 12 to 15 Democrats tell him they’re opposing the bill.
“I know my leadership. They wouldn't bring it up unless they thought they had the votes,” Butterfield said.
Black caucus split
One sign of that confidence is that leadership decided to move the measure through the Rules Committee, the last stop to amend the bill in an effort to accommodate member concerns. The committee reported out and the House adopted a closed rule preventing amendments.
Illinois Democrat Robin Kelly, who chairs the CBC’s Health Braintrust, described the caucus as split. While she supports the bill she said she understood why others felt targeted by the menthol ban.
“There are things that haven’t happened throughout the years that make African-Americans skeptical,” she said. “Are people going to get in trouble? Are people going to be pulled aside, arrested, whatever?”
But Kelly said that tobacco companies shouldn’t be left off the hook for their targeting black smokers with menthol products in the first place.
Rep. Yvette D. Clarke of New York, who opposed the bill during a November Energy and Commerce markup, reiterated her concerns in an op-ed published in The Hill newspaper on Thursday. In addition to concerns about menthol, she pointed out that the bill would exempt premium cigars — more popular among white people, she said — from going through the Food and Drug Administration’s pre-sales authorization process.
“White adult smokers would see little difference in their lives after this ban while black smokers could face even more sweeping harassment from law enforcement if the hint of menthol smoke can justify a stop,” she wrote, expressing fears a ban on menthol cigarettes could motivate police to conduct “stop and frisk” searches.
Energy and Commerce Chairman Frank Pallone Jr., D-N.J., stressed in a Rules Committee hearing Wednesday that the bill would empower just the FDA to enforce the menthol ban. The bill does not outlaw possession or consumption of menthol products, but there could be criminal penalties for illegal sales and manufacturing.
Clarke amended the bill in committee in November to provide educational materials to law enforcement about the FDA’s regulatory authority in order to prevent police profiling but is still concerned the ban gives rogue cops a reason to target members of the black community.
"They know that there's a certain segment of the population that smokes this type of cigarette," she told CQ Roll Call.
Social justice groups including the American Civil Liberties Union and Drug Policy Alliance raised those concerns in a letter addressed to Pallone Monday, saying the menthol ban could further deteriorate the relationship between police and communities of color.
“Recent history shows us that drug prohibitions and bans increase negative interactions between law enforcement and people of color,” the groups wrote. They cited the 2014 death of Eric Garner, a citizen who was put in an illegal chokehold by police for selling single cigarettes in violation of state law.
At the same time, tobacco companies have historically been major donors to the Congressional Black Caucus Political Action Committee and the Congressional Black Caucus Foundation.
A lobbyist for the company that markets Newport cigarettes sits on the board of the CBC's PAC. Former Rep. Albert Wynn, D-Md., is a lobbyist for Greenberg Traurig LLP, the lobbying firm that represents Imperial Brands PLC and British American Tobacco PLC.
Altria Group Inc., formerly known as Phillip Morris, has donated an undisclosed amount to the foundation according to the company's most recent transparency report.
Even if the bill passes the House, its supporters in the Senate say its chances of being brought up for a vote in that chamber are slim. The White House said in a statement of administration policy that it opposes the bill because of the implications for adult e-cigarette users' access to "products that may provide a less harmful alternative" to traditional cigarettes.
Only a minority of Republicans say that more sweeping e-cigarette flavor restrictions are needed, and a menthol cigarette ban has been panned by Senate Republicans from tobacco states like Richard M. Burr of North Carolina.
The year-end fiscal 2020 spending law included a provision that raised the nationwide tobacco sales age to 21. Democrats and Republicans alike viewed the change as a way to prevent younger teenagers from accessing e-cigarettes and other tobacco products. Supporters of the stronger e-cigarette flavor restrictions, like Illinois Democrat Richard J. Durbin, have said that raising the age was important but a missed opportunity to do more.