If adopted, his Food and Drug Administration rule would set a new maximum nicotine level for cigarettes, effectively banning virtually all cigarettes currently available for commercial purchase in the United States.

BIDEN USES LAME-DUCK PRESIDENCY TO SHAPE LEGACY AND FINISH TO-DO LIST

Biden’s Office of Management and Budget concluded a review of the proposed rule, the text of which has not been published, on Jan. 3. The rule must still enter a public comment period before it can be finalized, but, based on the typical comment period window of 30-90 days, it would fall to President-elect Donald Trump to implement the rule.

Trump transition officials declined to comment on Biden’s proposed rule, but the Trump-era FDA first began studying lowering nicotine levels in cigarettes back in 2018.

Smoking rates are currently at all-time lows, according to Gallup, but government estimates believe that this new rule will lower smoking rates to just over 1% by the year 2100.

However, Richard Marianos, the former assistant director of the Bureau of Alcohol, Tobacco, Firearms and Explosives, blasted Biden’s final push to ban cigarettes, suggesting the effective bans will drive users to purchase unregulated products on the black market and prove a financial windfall for criminals at home and abroad.

“It’s a ridiculous push,” Marianos, now a professor at Georgetown University, told the Washington Examiner. “This is a gift that Biden is giving to criminals out there, and they’re going to see it, and they’re going to capitalize on it, and there’s not a thing we’re going to be able to do except react instead of be proactive.”

He said law enforcement does not have the capacity nor the resources to deal with cigarette trafficking.

“You’re going to empower the cartels on the border. You’re going to empower the Chinese counterfeiters. You’re going to empower Russian organized crime to sell these cigarettes because it’s not going to stop the demand,” Marianos said. “Prohibition, or any type of change in a product like this, never works. It never will work. It hasn’t worked in the past, and it’s going to create problems.”

From an economic perspective, a sweeping ban on available cigarettes would have a major fiscal impact.

An analysis published in December by Chmura Economics & Analytics found that the FDA’s proposed nicotine limit would yield an annual loss of $24 billion in federal, state, and local taxes.

Furthermore, the rule could lead to more than 150,000 agriculture and retail job cuts across the nation, leading to additional negative “ripple effects” in local economies. 

Chmura notes that the District of Columbia and all 50 states also receive yearly payments from tobacco companies as outlined in 1998’s Tobacco Master Settlement Agreement. Biden’s ban would result in additional TMSA losses exceeding $21 billion per year.

Ray Starling, general counsel for the North Carolina Chamber of Commerce, told the Washington Examiner that North Carolina farmers would be financially devastated should the new rule go into effect.

“What people need to understand is we don’t have people that are just tobacco farmers. They are tobacco farmers and also produce and vegetable farmers, or wheat farmers, or they also have hogs and cattle because we’re a diversified [agriculture] state,” he explained. “If you take tobacco farming out of the quiver of some of these farmers, it will be what sort of tips them over to the edge of being in the red and not in the black, and I don’t think FDA made any effort to try to understand that.”

Starling predicted both farmers and states would take legal action against the federal government should the rule be implemented.

“We’re all fighting in the courts now anyway. We’d be foolish to take that off the table,” he stated. “You can certainly quote me on that.”

The White House did not answer questions regarding criticism of Biden’s rule, but the administration ran into similar pushback during the president’s 2023 attempt to ban menthol cigarettes.

That rule, like the proposed nicotine limits, made it through an OMB review but was never adopted.

The administration framed that regulation as an attempt to specifically limit smoking among black and Latino Americans, who account for roughly 80% of all menthol use, according to the federal government.

“We’ve been down this road as a community before, where you see these public health policies that are meant to benefit us, actually ended up putting us in a worse situation,” drug policy expert Art Way told the Washington Examiner at the time.

“We’re going in the right direction with tobacco,” he added. “So why do this now? And the fact that they don’t have any type of cessation elements involved with the ban, there’s nothing being done in conjunction with the ban to assist users to potentially quit. That to me proves that this is largely symbolic, retributive, and political. It’s well funded.”