On November 27, 2019, Massachusetts became the first state to permanently ban the sale of all flavored tobacco products.  This includes mint and menthol cigarettes, flavored electronic cigarettes (vaping and heat-not-burn), and smokeless tobacco.  The law also includes a 75 percent excise tax on e-cigarettes.  The stated purpose is to stop an epidemic of youth vaping and prevent teenagers from beginning a lifetime of addiction.

In 2020, Maryland attempted to implement a similar ban and faced strong opposition, particularly from vapers.  It is expected the Maryland legislature will introduce legislation again this year and other states are considering doing so as well.

But before states jump on board the anti-flavor train, they should carefully examine what has happened to Massachusetts since the ban was put in place.  According to a study by the New England Convenience Store and Energy Marketers Association (NECSEMA), excise tax lost income in Massachusetts from selling fewer menthol cigarettes alone amounted to $62 million in the first six months of the ban.  Massachusetts’ loss became its neighboring states gain.

Cigarettes excise tax stamp sales dropped 23.9 percent in Massachusetts while New Hampshire gained $28,574,340 or 29.7 percent.  Rhode Island gained $12,100,000 or 18.2 percent in excise taxes.

The estimated Massachusetts loss including the sales tax is $73,008,000 while Rhode Island saw a gain of $14,066,740.

NECSEMA Director Jonathan Sheer said the figures prove that the ban was ineffective and “[i]ndisputably, menthol cigarettes are purchased in neighboring states and then brought back into Massachusetts for personal consumption or illicit market sales.”

There is no doubt the impetus for the flavor ban was the outbreak of e-cigarette or vaping use-associated lung injury (EVALI) across the nation.  According to the Centers for Disease Control and Prevention data from across the country show that vitamin E acetate, an additive in some tetrahydrocannabinol-containing e-cigarettes, was found in products obtained from “friends, family, or in-person or online dealers.”  In other words, these products were obtained by illicit means.

Flavored e-cigarettes became pariahs, as many thought they were the cause of the lung injuries.  But flavor bans are particularly injurious to individuals that use vaping, or other electronic cigarettes, to wean themselves off harmful combustible cigarettes.  It is the burning of tobacco that releases the harmful chemicals that cause lung and heart disease and cancer.  Public Health England argues that alternative nicotine delivery devices, like vaping, are “less harmful and could play a crucial role in reducing” smoking which “remains the biggest single cause of preventable death and disease.”

Implementing addition bans on legal products like Massachusetts has done, will encourage more illicit behavior.  Black markets will flourish as unscrupulous actors will purchase products in ban-free states and sell them illegally in the states that have banned these products.  And China, which grows the most tobacco in the world, will not be shy in producing these products for the black market.  For example, China is the primary source for fentanyl trafficked into the United States.

The best way to stop youth from utilizing cigarettes or any tobacco product is parental oversight and continued education on the harm they can cause.  Banning flavors and taxing tobacco harm reduction products just shifts sales to the black market and hurts people who want to use less harmful tobacco products to stop smoking.  States should not follow Massachusetts’ unsuccessful ban on flavored tobacco products.