The Food and Drug Administration plans to ban menthol cigarettes and flavored cigars.

Tobacco companies have long marketed menthol products to Black Americans, who use them at a higher rate than other racial or ethnic groups, according to the Centers for Disease Control and Prevention. The NAACP said in a statement it applauds the FDA’s plan, but some are concerned it could lead to further criminalization of communities of color.

“Removing menthol cigarettes and all flavored cigars from the marketplace will prevent many youth from even starting smoking. They’re very popular amongst youth, and it will promote individuals who are addicted to menthol cigarettes to quit, primarily African Americans since they utilize menthol cigarettes at the highest rate. Over 80% of Black tobacco users use menthol,” said Kristina Hamilton, director of advocacy at the American Lung Association.

Menthol flavoring is cooling and can make a cigarette less harsh for the user, which is why it is added to so many tobacco products, Hamilton said.

Since the 1950s and ‘60s, tobacco companies have heavily marketed menthol tobacco products to Black Americans, she said, using positive images of Black people at a time when negative images were widely used.

“They really laid the groundwork and were pretty effective at making these products be so attractive to Black people and that has led to a number of disparities,” Hamilton said. “There’s higher rates of heart disease in the Black community, which is connected to tobacco-related illness, and the lung cancer rates are very high amongst Black men. Despite smoking at similar rates to white men they develop and die of the disease at higher rates.”

Dr. Clyde Yancy, chief of cardiology of Northwestern’s Department of Medicine, said the ban is the first step in a larger initiative.

“The goal really is to reduce the burden of tobacco in communities that are quite vulnerable, that are at risk and that have already suffered a disproportionate burden due to their exposure to tobacco,” said Yancy, who is also the vice dean of diversity and inclusion at Northwestern. “It’s not just mentholated products, it’s all the other ways in which tobacco has been hoisted upon communities at risk, whether it’s through vaping products or through flavored cigars. There are innumerable ways other than traditional cigarette smoking that have become conduits, pathways for tobacco to enter communities at risk.”

Yancy said it’s especially important to create environments for children and younger adults in which they aren’t exposed to mentholated products.

While well intentioned, the ban could further criminalize communities of color, said Nusrat Choudhury, legal director at the American Civil Liberties Union of Illinois.

“It will likely lead to criminal penalties, both under federal law and under state and local law, and that’s because when the FDA bans menthol cigarettes, every state in the country, including Illinois, has laws that criminalize the unlicensed sale of tobacco products and that would mean that there would be an underground market of menthol cigarettes,” Choudhury said. “Because there are so many people who use these cigarettes who are people of color, that leaves them open to police stops and encounters that can escalate and cause harm.”

Choudhury noted that Eric Garner was killed by police in 2014 after they were ordered to arrest him for selling untaxed cigarettes on the street.

The ACLU would like to see a harm reduction approach, including public education campaigns about negative impacts of tobacco use, and clarity on what enforcement of policies will look like, Choudhury said.

Hamilton said the ban would focus on removing menthol cigarettes from the marketplace, and that enforcement would be up to state and local law enforcement.

“This is about the manufacturing, the importation, the retail of menthol cigarettes to prevent them from being on the market at all,” Hamilton said. “We do not want to criminalize people who are addicted to these products, we want to prevent them from even getting on the market.”

After the announcement, the FDA now has to propose a rule, which could take up to 12 months, Hamilton said. Then there will be a comment period and time for the FDA to review comments submitted before finalizing a rule. Then, litigation is expected. At the earliest, the ban would not go into effect until 2024, Hamilton said.

“It’s not a step toward criminalizing Black communities,” Yancy said. “It’s a step toward liberalizing Black communities and giving them an opportunity for better health and a much more productive life.”