Local Opinion: New Federal Criminalization Effort will fuel Cross-Border Illicit markets and undermine public safety

Arizonans and folks across the country look to their local law enforcement to keep our communities safe.

That’s especially true today, as we face some of our greatest public safety challenges in decades — from an uptick in violent crime rates and an ongoing opioid epidemic, to escalating cyber-crime and the rise of extremist groups threatening national security.

And, particularly relevant in Arizona’s southern communities, we continue to address a crisis along our southern border.

As Cochise County Sheriff, my department is the chief law enforcement agency covering 6,215 square miles of territory with more than 80 miles of shared border with Mexico. As we prepare for another influx of migrants and its impacts on our small towns — alongside addressing these other public safety priorities — we are also tackling the need to build more trust in our communities by modernizing our training, tactics and approaches that avoid escalation.

So it should alarm every Arizonan, and every American, that regulators in Washington are about to hand down a new unfunded mandate on local police departments that risks distracting police from these critical goals, while fueling an already booming illicit marketplace.

In the coming weeks, the U.S. Food and Drug Administration is planning to finalize a new Prohibition-style rule criminalizing the use of flavored tobacco products.

These flavored tobacco products have, until now, been legal and regulated. As I warned the Biden Administration last year, this Prohibition-based policy will have a major impact on not only my agency, but law enforcement around the U.S. and the communities we serve, because it will create a new and massive illicit market in the very products the FDA is seeking to eliminate.

States attempting their own criminal bans on these products, such as Massachusetts, are seeing spikes in illicit product sales.

We already face a growing illicit market for tobacco products in the U.S., driven in part by high taxes on legally sold tobacco. Banning legal sales of currently regulated products would create powerful financial incentives for cartels and criminal networks — both domestic and international — to step in to supply the unmet demand.

With financial incentives this powerful, the question isn’t whether an illicit market for flavored tobacco will rise, but just how big it will be.

In fact, just this month, a group of U.S. Senators urged the U.S. Treasury Department to sanction Tobacco International Holdings, a Switzerland-registered business, for reported ties to a Mexican cartel. As the Senators noted: “Since at least 2018, the Cártel de Jalisco Nueva Generación (CJNG), a cartel sanctioned by the United States for its role in trafficking narcotics and fentanyl, has been involved in the sale of tobacco products to generate a new revenue stream … .”

Setting aside the public health harms of unregulated tobacco products flooding the market, criminal networks do not confine their activity to one crime. Rather, history shows us that the more criminal activity there is to engage in, the more crime escalates across the board.

The U.S. State Department issued a report in 2018 that carefully detailed the many layers of serious crime that illicit tobacco trafficking is associated with, including violent crimes, property crimes, human trafficking, and terrorism.

The last thing Arizona needs is an entirely new category of controlled substances capable of generating billions of dollars in new funding for the criminal networks whose threats to society we are tirelessly working to reduce.

While the FDA has claimed that enforcement of its proposed ban would only occur against tobacco makers, rather than individuals, the fact is that all 50 states, including Arizona, treat trafficking in illicit tobacco products as a serious crime, subject to arrest, prosecution and imprisonment.

Confronted by an influx of illegal products as a result of this new prohibition, law enforcement would now become the menthol cigarette police, investigating and interdicting illicit domestic manufacturing, illegal smuggling at the borders (like ours) and at our Ports of Entry, illicit distribution within and across state lines, and, ultimately, illicit sales in our communities.

And all of this must be done in a coordinated, multi-state manner with the infrastructure necessary to be successful — an undertaking in need of resources in the many billions of dollars.

In these ways, the FDA’s proposal represents an unfunded mandate for law enforcement that will shift responsibility for enforcement of these tobacco products to state, local and federal law enforcement — but without the resources needed to deal with these new responsibilities.

I have joined with fellow law enforcement leaders from across the country in urging the FDA to use other tools at its disposal that support harm reduction without resorting to criminalizing these products and turning the whole category over to the men and women of law enforcement focused on keeping our communities and borders safe.

It should go without saying that we do not endorse or support tobacco use, and the fact that menthol cigarette use, along with other tobacco metrics, are at historic lows should be applauded.

But tobacco policy belongs with regulators, not police. Prohibition-based criminalization will put our men and women in uniform and the communities we serve at risk. And there are much better options for reducing tobacco use even further without shifting these products into the criminal justice system.

With the many challenges we are facing in our work to keep Arizona communities safe and secure, tobacco prohibition is the last thing we need right now.