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An interesting consequence of the current regulatory situation is that a tobacco manufacturer may not be able to make a legitimate exposure-reducing or reduced-risk claim for a new product, even if truthful, without bringing the product under the jurisdiction of the FDA

A ban will also lead to unconstitutional policing and other negative interactions with local law enforcement." The ACLU letter noted that "a menthol cigarette ban would disproportionately impact communities of color, result in criminalization of the market, and exacerbate mass incarceration." The ban "also risks creating large underground, illegal markets." That "would be a massive law enforcement problem for states, counties, and cities, since all states treat unlicensed sale of tobacco products as a crimeusually as a felony punishable by imprisonment." The FDA glides over that point, instead emphasizing that the agency "cannot and will not enforce against individual consumers for possession or use of menthol cigarettes." But many of those individual consumers will look for ways to continue smoking the kind of cigarettes they like, and that demand will be filled by other individuals, who in turn will be subject to criminal penalties