New York convenience store owners and state lawmakers are speaking out against a proposed federal ban of menthol cigarettes and flavored tobacco products as the White House plans to delay the decision to spring 2024, saying it will hurt small businesses and breathe new life into New York's black market.

The U.S. Food & Drug Administration's has long worked on a plan to prohibit menthols, with the agency saying the products are deadlier than regular tobacco.

The decision at the federal level will set the stage for New York, but convenience store and other small business owners across the state are fighting to see the rule rejected.

"It's a legal product," New York Association of Convenience Stores President Kent Sopris said.

Sopris is helping to lead efforts against the ban, which he says would boost illegal sales and devastate retailers — as tobacco makes up one-third of a convenience store's business.

"For a single store operator to lose a third of his business in upstate New York is problematic, and that doesn't just remove the tobacco from the community," Sopris said. "What it does is it removes, in many places, the only store in town — the place where [people] get eggs, and milk and bread."

Sopris is concerned a ban would make it easy for consumers to turn to the black market with thousands of illicit marijuana dispensaries open across the state, and the rule won't stop people from smoking menthols. He pointed to the current federal ban on flavored disposable vapes imposed about three years ago, but that the products can be found most anywhere. 

"Let's take a look at what the facts say, the data says, before we act and create another black market boondoggle," he added. "...We have a government that wants to ban these products, but doesn't seem to want to enforce current bans."

Gov. Kathy Hochul and state health leaders were vocal this year about their support for a menthol ban in the name of public health. Hochul included a similar ban in the executive budget she posed this year, but it was rejected by the Legislature and didn't make the final spending plan.

"We should do what we can to avert the worst health outcomes that can happen from people's continued smoking, [and] not just smoking, but smoking menthol," Senate Health Committee chair Gustavo Rivera said.

Rivera, a Democrat from the Bronx, backs the proposed ban — standing with the governor and other health officials.

"Anything that we can do to avert the worst outcomes of that and in communities of color, I believe we should do," he said.

If menthol is eliminated, the FDA estimates it could prevent between 300,000 and 650,000 smoking deaths over the next several decades — especially among people of color, as about 85% of Black smokers smoke menthols.

But Assemblywoman Michaelle Solages, who chairs the state's Black, Puerto Rican, Hispanic and Asian Legislative Caucus, also stands against a widespread ban.

"We said loud and clear a ban is not ideal, and that we can have holistic approaches on ensuring that people don't use menthol or other vaping products," she said Thursday.

Solages argues prohibiting menthols isn't the correct way to improve health disparities in marginalized communities, adding lawmakers need to bolster those communities with more resources, education and improved health care access instead.

"By addressing systematic racism in communities, we can prevent people from leaning on substances, whether it's illicit drugs or vaping, and ensure that they have access to health benefits," Solages said.

It's unclear if a menthol ban will be a conversation at the state level again next year. Representatives with Hochul's office did not respond to requests for comment Thursday, and did not answer questions about if the governor plans to pursue a menthol ban in New York if it fails at the federal level.

The Black, Puerto Rican, Hispanic and Asian Legislative Caucus will release its priorities for the 2024 legislative session later this month. Solages would not provide details of the policies to be included, but said they will be focused on fighting against cuts to programs in health care, education, housing and the transition to clean energy amid the budget deficit.

"We have a lot of pockets of disparities whether it's in New York City and Long Island or in upstate New York, there are New Yorkers who are currently suffering," she said. "We want to definitely influence the conversation."