Welcome to the Nicotine Prohibition Era REGULATORS HAVE LONG TARGETED TOBACCO PRODUCTS, BUT THERE'S NEW ENERGY BEHIND OUTRIGHT BANS ON VAPES AND CIGARETTES.

• Author: Grier, Jacob

IN JULY 2014, five New YorkCity police officers approached Eric Garner on a Staten Island sidewalk and accused him of illegally selling "loosics"individual cigarettes without a tax stamp. Garner resisted handcuffs, and a scuffle ensued. Officer Daniel Pantaleo placed Garner in a prohibited chokehold while pushing him down to the ground face-first. After protesting 11 times that he could not breathe, Garner lost consciousness and died within the hour, sparking national outrage and raising awareness of the Black Lives Matter movement.

American policy regarding tobacco-based products has become considerably more restrictive since Garner's death, putting illicit market participants on a collision course with law enforcement. Even as the country finally begins to acknowledge the disastrous consequences of the war on drugs, government officials are increasingly taking a prohibitive approach to nicotine.

In two separate June 2021 incidents captured on video in Ocean City, Maryland, teenagers caught vaping on the boardwalk in violation of a local ordinance were manhandled by police. One was kneed in the chest, while two others were tased. That same month, Massachusetts Attorney General Maura Healey announced the breakup of a distribution ring for marijuana, flavored tobacco, and flavored e-cigarettes. The main suspect, Samuel Habib, faces up to five years in prison for tax evasion. "Flavored tobacco and vaping products are dangerous, addictive and particularly appealing to young people," Healey explained in a statement. "Which is why we've banned the sale of them in Massachusetts."

Tobacco is still legal for adults to purchase and consume in the United States. But public policy regarding nicotine delivery systems is shifting from taxation and regulation to explicit prohibition of many products. Some jurisdictions already have banned menthol cigarettes, and the Food and Drug Administration (FDA) is likely to announce a similar ban at the federal level this spring. Local restrictions on e-cigarettes likewise provide a preview of what will happen nationwide if the FDA continues to regulate vaping products in a way that threatens to wipe out nearly the entire industry. The FDA is also mulling restrictions on the nicotine content of cigarettes that would be tantamount to prohibition.

As tobacco, e-cigarettes, and e-liquids transition from legal to illicit, law enforcement agencies will more aggressively interfere with production, distribution, retail sales, and in some cases even individual use. Every such interaction carries with it the possibility of freedom lost, perhaps violently. There is a real risk that American tobacco policy will open a regressive new front in the war on drugs, just as the previous crackdown on psychoactive substances begins to wind down.

FROM PROHIBITION TO REGULATION AND BACK AGAIN

PERHAPS IT'S DIFFICULT to imagine that tobacco could be treated like an illegal drug in the country that gave the world Joe Camel and the Marlboro Man. But it has happened before.

During the Progressive Era around the turn of the 20th century, cigarettes were targeted nearly as vociferously as alcohol. The Anti-Saloon League and Carrie Nation had their counterparts in the Anti-Cigarette League and the equally fervent Lucy Page Gaston. Although anti-smoking forces never matched the temperance movement's achievement of national prohibition, they were nevertheless a political force to be reckoned with.

"Between 1890 and 1930, fifteen states enacted laws to ban [the] sale, manufacture, possession, or use [of cigarettes], and no fewer than twenty-two other states and territories considered such legislation," historian Cassandra Tate notes in her 1999 book Cigarette Wars. "By 1920, minors could legally buy cigarettes only in Virginia and Rhode Island. Many municipalities imposed further restrictions, from making it illegal for women to smoke in public, to outlawing smoking in or around school buildings, to banning certain kinds of advertising. Cigarette smokers faced discrimination in the courtroom, in the workplace, and in daily life. In 1904, for example, a New York judge ordered a woman to jail for thirty days for smoking in front of her children."

As with alcohol, these prohibitions did not last. Lacking the will for consistent enforcement, governments applied the laws rarely and selectively. The rising tide of cigarettes, driven largely by soldiers returning from World War I and the association of smoking with women's independence, proved impossible to stem. By the end of the 1920s, states generally had decided it was easier to tax and regulate cigarettes than to ban them.

The anti-cigarette crusade fizzled until the 1950s, when researchers definitively tied smoking to lung cancer and other diseases, culminating in the landmark surgeon general's report of 1964. The updated anti-smoking movement, now grounded on a firmer medical foundation, advanced regulatory policies to discourage and denormalize smoking: warning labels on cigarette packages, restrictions on marketing, educational efforts, excise taxes, and location-specific bans on lighting up.

American smoking rates declined steadily from their midcentury peak. Today about 14 percent of U.S. adults smoke cigarettes, down from nearly half in the 1950s. But for half a century, as taxes rose and smoking-friendly venues disappeared, the product itself remained more or less physically unchanged and legally available to adults.

That began to change with the passage of the 2009 Family...