Rev. Al Sharpton’s talk on banning menthols draws debate over policing, tobacco companies

White cloths were draped across tables topped with crimson roses on the Beebe Memorial Cathedral pulpit. Choir members dressed in black gathered behind the tables to sing. One woman, wearing a bold red “3 ½ minutes, ten bullets” t-shirt sat in the pew closest to the pulpit, awaiting the voice of Reverend Al Sharpton.

On a mild mid-October evening, nearly 100 occupants filtered into the predominately Black church in Oakland’s Temescal neighborhood, expecting to hear a discussion advertised as “Decriminalizing the Black Community.” Reverend Dr. Charley Hames approached the audience and led them in chanting “No justice, no peace,” a line used famously by civil rights activist and National Action Network (NAN) founder Rev. Sharpton. Hames pastors Beebe Memorial Cathedral and serves as the president of NAN’s Oakland chapter.

Then, Sharpton walked to the pulpit. Sharpton began by saying it’s important for Black people to speak up about issues in their communities. He referred to the second presidential debate, which took place just miles away from Ferguson, Missouri, where police officers killed unarmed Black man Michael Brown, but said that neither candidates nor moderators mentioned police brutality.

“I think our community has to engage in critical thinking and not have other people [outside the Black community] do the thinking and put the boundaries of where the conversation goes,” he said. “If we don’t discuss things about ourselves, for ourselves, then they won’t be discussed.”

Then he presented the topic at hand: a potential ban on menthol cigarettes.

Sharpton spoke for about ten minutes about this potential ban, which he argued would cause higher incarceration rates and more officer-involved killings of Black people, because police officers would have another reason to look for crime in Black neighborhoods. Sharpton said, “I’m not going to support cigarettes, and I don’t support smoking. The issue is selective criminalization.”

Heads nodded in the audience as eyes rolled, signifying some listeners’ outrage that police would have another reason to target Black neighborhoods and others’ annoyance that speakers would spend the entire evening talking about a ban that does not yet exist.

 The Food and Drug Administration (FDA) and tobacco companies have been battling over a menthol ban for years. The FDA banned sales of flavored cigarettes in 2009 under the Tobacco Control Act because of concerns that using flavors would hook people on cigarettes at a younger age. But that ban excluded menthol cigarettes.

In 2013, the FDA proposed regulations for menthol cigarettes with support from researchers who argued that removing menthol from cigarettes could benefit public health. The researchers had concluded that menthols could be more addictive than other cigarette types because of menthol’s cooling sensation. In the FDA’s 2013 study, researchers found that younger adolescents (middle school smokers compared to high school smokers) prefer menthol over non-menthol cigarettes and showed that there was a higher nicotine dependence among menthol smokers.

 In 2014, tobacco companies Reynolds American Inc. (RAI), owner of the Kool, Camel, and Pall Mall cigarette brands (all of which produce both menthol and non-menthol cigarettes), and Lorillard Inc. sued the FDA in an effort to block them from using the research to ban menthol cigarettes. In 2015, RAI purchased Lorillard Inc., which manufactures menthol-infused Newport cigarettes.

This January, the FDA successfully filed an appeal of the 2014 suit, and the U.S. Court of Appeals lifted the injunction. In March, attorneys for Reynolds requested that the U.S. Court of Appeals deny the appeal.

According to the FDA’s 2013 rulemaking proposal, the FDA is considering “sale and distribution restrictions” of cigarettes with menthol ingredients. FDA spokesperson Michael Felberbaum said the agency’s regulation efforts are in very early stages. He wrote via email, “If the FDA decides to issue a rule, the first step in that process would be a Notice of Proposed Rulemaking, which would give the public an opportunity to weigh in on the proposal.” After requesting public input in 2013, they received more than 175,000 comments on menthol regulation. Felberbaum did not comment on how a potential ban would be enforced.

 In his talk, Sharpton said he thinks a ban would be unfairly enforced to focus on Black people. He’s concerned that since menthol cigarettes are more popular among Black smokers than white smokers, a ban would criminalize Black people more than whites. “Why do y’all [FDA] want to ban what we [Blacks] are smoking and not just ban cigarettes?” he asked.

In 2013, Forbes published an article stating that minorities are the biggest consumers of menthol cigarettes. According to the article, 83 percent of Black, 51 percent of Asian and 47 percent of Latino smokers prefer menthol cigarettes, whereas menthols are the chosen cigarette for 24 percent of white smokers.

 Sharpton compared a potential ban on menthol cigarettes to the 1980’s and ‘90’s crack epidemic, during which most people incarcerated for crack-related offenses were Black. He referred to then-president Bill Clinton’s 1994 crime bill, which allocated nearly $10 billion to federal prison construction and encouraged states to increase sentencing time for convicted persons.

“The way the bill was written, if you were caught with a small bottle of crack, [it resulted in] mandatory jail time. If you had loose cocaine, non-mandatory time,” said Sharpton. “That meant that the young guys at the end of the drug train were doing mandatory drug time, and the guys they were getting the powder from to make the crack, would get a good lawyer and go home. A whole generation [of Black men] ended up incarcerated.”

By 2009, according to the U.S. Sentencing Commission, 79 percent of those imprisoned for a crack-related crimes (possession or distribution) were Black and 10 percent were white; whereas Blacks made up 17 percent of people imprisoned for a powder cocaine crime and whites amounted to 28 percent of those prisoners. Crack-related offenses on average resulted in a sentence two years longer than those for cocaine offenses.

 Sharpton said such potential bans can bring “unintended consequences” to Black communities, and reminded listeners of the California “three strikes” law, which mandated a lifetime in jail after committing a “serious” crime for the third time. According to a 2013 article in Rolling Stone, three strikes disproportionately affected Blacks: “In California, blacks make up seven percent of the population, 28 percent of the prison population and 45 percent of the three-strikers.”

Sharpton encouraged the congregation to proactively work to stop laws that could result in another Eric Garner case, in which a New York police officer choked an unarmed Black man to death while arresting him for selling untaxed cigarettes. Witnesses captured the incident on their cellphones. “Eleven times on the tape he said, ‘I can’t breathe.’ They killed him over ‘loosie’ cigarettes. Well, how many of these kind of situations are we going to have if we keep having these kind of engagements around criminalizing of low-level offenses?” Sharpton asked.

Then Sharpton introduced the moderator for the panel, former Florida Congressmember Kendrick Meek—but it wasn’t much of a panel, because it only had one other member on it. Meek sat at the table on the altar and was joined by Major Neill Franklin, a former Baltimore police officer and the executive director of Law Enforcement Against Prohibition (LEAP). LEAP is a nonprofit organization that advocates for drug reform in the United States. Sharpton exited the church moments after he introduced the panel.

Meek said his father started smoking cigarettes when he was 16 years old and eventually died of lung cancer. “When you look at this question of smoking, there’s no one that can say, ‘Hey, I’m an advocate for smoking.’ No, that’s not my position. And that’s not the position of majority of us in this room,” he said.

But Meek said although he doesn’t condone smoking, he thinks a ban on menthols would allow officers to arrest more Black people for selling or smoking those cigarettes. “I think it’s important and becomes a civil rights issue when you empower law enforcement to enforce something when they know that 80 percent of Black smokers, smoke menthol cigarettes,” he said.

Then Meek introduced Franklin, who spoke about his experience as a police officer. Franklin said that most of the arrests he made were for marijuana possession and sales, and most people he arrested looked like him, meaning Black. He echoed Sharpton’s point that banning menthol cigarettes could lead to an underground market, resulting in more cases in which Black people get arrested for selling an illegal product or, worse, killed for nonviolent offenses. Franklin added that an underground market for cigarettes would pose an even greater health risk for smokers, because the FDA will no longer oversee what goes into them.

The conversation quickly shifted as the floor opened for audience questions. While one person thanked Meek and Franklin for the information, health care researchers in the audience said the speakers used the town hall to protect cigarette manufacturers’ profits, rather than Black communities.

Dr. Philip Gardiner, a researcher at the University of California San Francisco (UCSF) and co-chair of the African American Tobacco Control Leadership Council (AATCLC), who investigates tobacco-related diseases and supports a ban on menthols, approached the microphone in the center aisle of the sanctuary. He spoke about the rising numbers of Blacks who prefer menthols, citing his research showing that 5 percent of Black smokers purchased them in the 1950’s, and that the figure is 85 percent today.

“What is menthol? How did it get into our community? Why is it in there? Why did our rates go from 5 percent to 85 percent in 50 years?” he asked, implying that tobacco companies are responsible for Blacks’ preference of menthols over other tobacco products.

Gardiner suggested the speakers invite him or someone who researches menthol cigarettes’ public health risks to speak at the next panel. He said, “I think the first step [to having a town hall] would’ve been to do some ‘Menthol 101.’”

In response to Franklin’s concern about an underground market arising, Gardiner said he believes that if the FDA prohibited the manufacturing of menthol cigarettes, people wouldn’t be able to sell them on the streets. “If the FDA did what it did with the other 13 tobacco flavors, there would be no menthol cigarettes to be on the black market, to be quite frank,” he said.

Then, the discussion got contentious. Some audience members tried to argue that a ban would be a good thing for Black people, saying it would help smokers kick their menthol habits.

Dr. Valerie Yerger, a health policy researcher at UCSF who investigates the disproportionate marketing of menthol cigarettes in inner cities and the medical effects of menthol smoke, said because more Black smokers prefer menthols than white smokers, a ban on menthols could be just as beneficial for them as the ban on flavored cigarettes was for white people. Tobacco use among young people decreased after lawsuits forced companies to stop marketing to children and continued to decrease after the flavored cigarette ban. “White kids are protected, because the flavored tobacco products are prohibited to be sold in” – Yerger began.

Meek interjected, “Is that a question, ma’am?” Murmuring filled the church. Pastor Hames stood up.

Yerger, standing at the microphone in the middle of the sanctuary, continued: “I will sit down, but people, wake up.”

Hames said, “I stay woke.”

“RAI, Reynolds American Incorporate is sponsoring–“ Yerger began.

“Turn her mic off,” said Hames. The microphone immediately cut off and Yerger sat down.

Both Yerger and Gardiner stated during the discussion that they believe the panel was funded by Reynolds, the tobacco company. “Since it’s funded by Reynolds American, you guys have obviously taken a stand around it,” Gardiner had said when critiquing the panel for not including any researchers.

Yerger has been critical about these meetings to discuss a potential menthol ban. She attended another town halls led by Meek and Franklin in Washington D.C. in September and one in southern California in October. Meek hosted another related meeting in Houston in June.

Speaking after the event by phone, Yerger said, “They’ve been talking about the criminalization of the Black male for at least three years. This has all been funded by RAI. They bought Newport from Lorillard. They bought Kool from Brown and Williamson. They have a monopoly on the menthol brand.”

Yerger said she believes that after Reynolds’ purchase of Lorillard, the company wants to protect their profits and is using Black leaders to do it. “Cigarette sales are going down, because people are smoking less,” she said. “The only type of cigarette that is maintaining an inclined rate [in sales] is Newport cigarettes. One of the things that’s threatening the vitality of Newport is this threat about regulating menthol cigarettes. So Reynolds gives money and builds relationships with Black leaders to use them as their front group.”

Dr. Carol McGruder, also a co-chair of AATCLC, said at the church meeting that she supports a menthol ban, because she cares about the Black community. “We care about them more than the people from Reynolds American Inc., who are the makers of Newport. I don’t think that anyone in this room thinks that the makers of Newport are friends of the Black community.”

Audience members began clapping. McGruder continued, “So having them pay for your panel is like having the KKK come in and talk to us about lynching.”

Meek interjected, “Is that a question?”

McGruder asked, “Can you give us more information on the relationship between Reynolds American Inc. and LEAP?”

Meek said, “The relationship as it relates to the panel is that we have a vested interest as former law enforcement officers in the criminalization of our community. It’s not just dealing with menthol. It’s a decriminalization discussion.”

 While it is hard to tell for sure whether or not Reynolds sponsored the Beebe Memorial Cathedral meeting, Reynolds has clear financial ties to the organizations behind the event.

The original flyer for the event, given to Oakland North’s reporter by an attendee at the town hall meeting was sent in an email newsletter, which included other events for the Black community in California. The bottom of the flyer read: “Sponsored by National Action Network and RAI.” But the town hall flyer on the church’s social media feed didn’t show sponsorship information. The flyer on the church’s Instagram account was cut off right below the church’s address. The flyer on Facebook revealed more information, including panelists who were expected to attend, but still no information on sponsorship.

Pastor Hames said that no one from Reynolds had attended the meeting, and that the company had not funded the panel. When asked about his reaction to the Q and A portion of the town hall meeting, Hames said, “Kendrick Meek and those individuals were representing their own organizations out of their own passion. That’s why you didn’t seen anyone from Reynolds on the panel.”

 A spokesperson from Reynolds declined to comment by email. “Thanks so much for the opportunity to be a part of your upcoming article, but I will respectfully decline,” wrote the company’s communications director David Howard. “It is my company’s policy not to participate in interviews with college or university newspapers or similar publications.”

Then, he encouraged Oakland North to speak with panelist Franklin. A few hours later, Franklin called, without being contacted by anyone at Oakland North. When asked about Reynolds’ role in the town hall meeting, he said the company paid for his plane ticket to fly from Baltimore to attend the panel in Oakland. He said, “These panels done in California are planned by NAN. Reynolds has nothing to do with the message.”

Franklin said Reynolds also funds his organization, LEAP. He said their sponsorship does not dictate his advocacy work. “We have a ton of donors who contribute to our organization, whether it’s Reynolds” or other groups, he said. Stopping prohibition, he said, “is our mission.”

“That doesn’t change now because you are donating to us,” he continued.

Kate Lucadamo of Sharpton’s communication team said the reverend’s schedule didn’t allow time for an interview about whether the tobacco company sponsored the event. When asked if someone else could answer a few questions, she replied, “We won’t be able to accommodate your request at this time.”

But one hour later she wrote: “It is true that the event was sponsored by a tobacco company and widely publicized. NAN has not taken a position but agreed to appear to discuss the impact on the community.”

 Some participants were not convinced to support the fight against a menthol ban. Attendee Cephus Johnson, the uncle of Oscar Grant, an unarmed man fatally shot by a BART police officer in 2009, said the problem at hand for the Black community is police officers engaging in misconduct. “This is not really about menthol. This is about the criminalization of young people. Anything can be used to justify the arrest of the young Black man,” he said.

He said that the Black community would be more inclined to support the panel members in their efforts to if they were advocating for holding police departments accountable for biases. “This is all about biased policing,” Johnson said. “For Black people in this country, who’ve been looking at you as a representative of us to attack these issues and these agencies that are known for that. We need your leadership. We need to know for sure that you’re doing that, and not just having a conversation.”

 But not everyone who attended the town hall felt debating a potential cigarette ban was a problem. Lois Corrin, an Oakland special education teacher, had arrived at an hour before the panel began. She said she came because she’s concerned about the incarceration rate for young Black men. “I worry about our daughters not having anyone to marry. So, I figured I’d come and listen,” she said.

Reached by telephone after the panel, Corin said she appreciated Sharpton’s comments. “I thought the panel was really good,” she said. “Al Sharpton’s comment that smoking is a bad thing—we’re not talking about that. That’s a separate thing. I was frustrated because the researchers from UCSF wanted to talk about menthol and the history, which is important, but this is another thing that we can get criminalized for.”

Lucadamo said Sharpton plans to continue to hold these town hall meetings in the future. Franklin also said he will keep speaking about preventing a ban on menthol cigarettes.

As for Hames, the church’s pastor said, “My goal is to make sure that my community is educated and informed and that’s at no cost or benefit to any public or private corporation.”