D.C. Council votes to ban sale of flavored tobacco, including menthol cigarettes

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A divided D.C. Council voted Tuesday to ban the sale of flavored tobacco products in the District, including menthol cigarettes.

The 8-to-5 vote came after a lengthy debate in which legislators who opposed the ban — and even some who favored it — raised concerns that the law could create opportunities for Black smokers to be harassed by police, and that the city would be unfairly targeting a smoking choice preferred by Black residents.

It was the council’s second vote in favor of the legislation, meaning that it now heads to the desk of Mayor Muriel E. Bowser (D), who supports the ban for health reasons and is expected to sign it into law.

The District joins the state of Massachusetts and some other cities across the country in banning menthol cigarettes, which are popular with Black smokers of all ages, alongside other flavored tobacco products such as the candy- and fruit-flavored e-cigarettes that critics say are targeted toward inducing teenagers to smoke.

The Biden administration has vowed to eventually outlaw such flavored tobacco products, including menthol, nationwide.

The D.C. bill bans the sale of the products in the District but does not criminalize an individual’s smoking of a cigarette. The council originally considered banning only e-cigarette products before expanding the bill to include menthol, a step that several legislators opposed.

“If the question is, ‘Is menthol bad for us?’ the answer certainly is yes. But if the question is, ‘Is smoking bad for us?’ the answer also is yes,” said council member Robert C. White Jr. (D-At Large), who voted against the ban. “In the original bill, we were trying to get at things that were targeted toward youth, flavored items. Menthol to me seems like a different category. . . . I’m seeing this as paternalistic.”

The members who voted in favor of the ban were Democrats Charles Allen (Ward 6), Mary M. Cheh (Ward 3), Vincent C. Gray (Ward 7), Kenyan R. McDuffie (Ward 5), Brianne K. Nadeau (Ward 1) and Brooke Pinto (Ward 2), and independents Christina Henderson (At Large) and Elissa Silverman (At Large).

In an attempt to avoid police interactions based on the use of flavored tobacco, the council approved a change to the bill Tuesday saying that the law does not give city police the authority to act on their own to enforce the tobacco ban.

The Department of Consumer and Regulatory Affairs, which can inspect D.C. stores to make sure they are not selling flavored tobacco, could still call in police for assistance.

The council carved out one exception — any hookah bars in the city which already have an exemption from the city’s ban on indoor smoking in restaurants will be grandfathered in, and can continue offering flavored hookah for use on their own premises.

Also at Tuesday’s meeting, the council approved a bill allowing candidates for public office to use campaign funds to pay for child care while they are working on their campaigns. The Federal Election Commission has ruled that such expenditures are permissible in federal campaigns. And advocates say permitting candidates to use their funds that way will make it easier for parents of young children to seek public office.

The council also approved a measure meant to compel the Bowser administration to comply with a court decision regarding the city’s Medicaid contracts. A D.C. judge ruled in December that the city erred when it awarded contracts to three health-care companies to provide care to the city’s Medicaid beneficiaries.

The judge ordered the city to redo the contracts, which total $1.5 billion and collectively are among the city’s largest annual expenditures. If the city were to follow that order, MedStar — which was awarded one of the contracts last year — probably would not retain the contract.

But the Bowser administration has not acted, and Bowser has instead proposed legislation to retroactively change a rule that MedStar violated, in the hope that the existing contracts could then stand.

MedStar’s participation is important in the view of the Bowser administration: Wayne Turnage, the deputy mayor for health, has warned that if MedStar were kicked out of the program, the health-care network might not cooperate with other insurers to allow their Medicaid patients to see MedStar’s doctors.

The city has rules in place to compel a hospital that treats any Medicaid patients to accept all insurers in the program. But Turnage said in an interview that he could choose not to enforce that measure against MedStar, if the company were willing to treat some Medicaid patients but not all.

In an interview, D.C. Council Chairman Phil Mendelson (D) described Bowser’s proposal to retroactively change rules as “preposterous” and “outrageous.” Instead, the council voted 9 to 4 to compel the city to reassess the contract as the judge ordered.

The bill lacks an enforcement mechanism to force the city to act. Council members had earlier proposed more drastic steps — including an idea that would impose a costly financial penalty if the city contracted with fewer than three Medicaid providers — but ended up with a bill that could allow the city, in theory, to drop MedStar and keep just two insurers.

Bowser noted Monday that the council’s action could mean many Medicaid beneficiaries will have to change health plans. “Thousands of people will be upended from their health care. I don’t think that’s the way for us to move forward,” she said.

Julie Zauzmer Weil/WaPo