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Excerpted from: Olivia Li, From Housing to Health: Imagining Antidiscrimination Provisions for Menthol Cigarette Marketing, 9 Columbia Journal of Race and Law 369 (2019) (Note) (154 Footnotes) (Full Document)


OliviaLiThe widespread decrease in smoking and tobacco use over the past fifty years has been one of the United States' greatest public health victories. Between the 1960's and now, the share of Americans who smoke has dropped from over forty percent to almost fifteen percent, which has driven down tobacco-related disease. This massive reduction in smoking has preserved the lives of over 800,000 Americans who, through smoking, would have succumbed to lung cancer. In honor of these gains, the Center for Disease Control counts tobacco regulation as a crowning public health achievement.

While these public health strides have been remarkable, the gains in smoking reduction have been distributed unequally across demographics. For example, low-income Americans and Native Americans have disproportionately high smoking rates. Smoking rates are the same between African Americans and Whites. Still, African Americans suffer from more tobacco-related disease and mortality.

Smoking behavior and preferences are also different across demographics where smoking rates might be equal. In particular, African American smokers overwhelmingly smoke menthol cigarettes, which are tobacco cigarettes flavored with the compound menthol. Menthol cigarettes have survived the mass tort litigation against tobacco companies and federal tobacco regulation that troubled the tobacco industry more broadly. Currently, almost nine out of ten Black smokers prefer menthol. This difference in use is troubling and is, in fact, a driver of health disparities. Though menthol itself does not make cigarettes more toxic, the additive does make cigarettes easier to start smoking and harder to quit.

The fact that more minorities smoke a more addictive product can be traced to racially targeted marketing campaigns that began in the 1950's. To this day, menthol cigarette makers inundate minority communities with advertisements while barely touching White markets. This targeting has created a disparate harm in public health, but current legal tools in tobacco regulation do not specifically address the civil rights injuries wrought by menthol cigarette makers' hyper-focus on African American populations and mentholated cigarettes' persistence in the tobacco market. This topic has been covered extensively in public health scholarship, where researchers express the intuition that tobacco companies' targeted advertising on the basis of race is unjust and exacerbates societal inequalities. This Note articulates those intuitions in legal terms by describing the harms of targeted marketing as civil rights injuries and by analogizing the marketing practices of menthol cigarette makers to the unlawful discriminatory behavior of lenders in the housing and credit sectors. While the practice of targeting certain goods at specific kinds of consumers is at the core of advertising, post-financial crisis cases about subprime lending show that racially targeted marketing can be harmful to minorities. This Note draws on law from subprime lending because it is one area where legislators and courts have established that targeting minorities for certain kinds of products is unlawful.

Part II of this Note will describe the racial disparity in menthol tobacco use, and parallel disparities in tobacco-related diseases, as a civil rights problem. It will also investigate the substantial history of menthol companies' targeting of African Americans.

Part III will explore tools that have been used to regulate cigarettes, including tort litigation, legislation, agency regulation, and civil rights litigation. It will also explain how each of the tools fails to reach the discrimination problem in racially targeted marketing of menthol.

Lastly, Part IV will explore how two consumer protection statutes--the Fair Housing Act and the Equal Credit Opportunity Act--have been interpreted to create liability for affirmative marketing of certain products based on race, especially in the aftermath of the subprime lending peak and the housing crisis. This Note will draw on those statutes to propose a federal statutory framework that would create civil rights liabilities for racially targeted marketing of menthol tobacco products.

[. . .]

Menthol cigarettes persist in spite of massive overhauls in the regulatory scheme over tobacco more generally, brought on by widespread tort litigation, congressional legislation, and FDA control. Its continuance is responsible for the massive health disparities between White Americans and African Americans, the latter of whom suffer earlier deaths and more tobacco-related disease. Past strategies, including tort litigation, civil rights lawsuits, and FDA rulemaking, have proven ineffective at both curbing menthol use and stopping tobacco companies from targeting advertisements for their products at African Americans and other minorities.

A new regime is needed, and it can be based off of the same ideas that undergird consumer protection statutes. Statutes like the Equal Credit Opportunity Act and the Fair Housing Act accept that there are some “products”--in credit, in particular--that are subpar or more harmful to a consumer, and they prevent directing consumers to those products on the basis of race. An analogous statutory regime for tobacco would finally target the core civil rights issue in this realm, which is the targeted marketing that produces health inequities.

J.D. Candidate 2019, Columbia Law School.

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