Massachusetts Governor Signs Law Severely Restricting Flavored Tobacco, Vape Products

Nov 27, 2019

Massachusetts Gov. Charlie Baker on Wednesday signed sweeping legislation to restrict the sale of flavored tobacco and vaping products, making his state the first to enact such stringent controls.

The new law, which is set to take effect on June 1, 2020, is not a blanket ban. Instead, it limits the sale of flavored nicotine vaping products, including menthol, "to licensed smoking bars where they may only be smoked on-site." The same restrictions apply to all other flavored tobacco products, including menthol cigarettes and flavored chewing tobacco.

Baker did not offer details on how the state intends to enforce the law.

The legislation, titled An Act Modernizing Tobacco Control, also imposes a 75% excise tax on e-cigarettes — meant to reduce their appeal to young people by making the products too expensive for minors.

"It's pretty clear there isn't going to be a federal policy on this anytime soon," Baker said at the signing. "So in the absence of that, we had to act."

Baker declared a public health emergency in September and issued a four-month ban on all vaping products, following mysterious lung illnesses and deaths nationwide that were linked to vaping. The temporary blanket ban was set to expire in late January, but on Wednesday, the governor said it will end on Dec. 11.

"In light of the growing health crisis associated with e-cigarettes and vaping, our administration implemented a temporary ban on the sale of e-cigarette and vaping products to provide time for legislative and regulatory bodies to better understand what's making people sick and act to protect the health of Massachusetts residents," Baker said in a statement emailed to NPR.

He went on to add that the temporary ban will remain in place "as the Department of Public Health develops permanent regulations that will ensure risks are known to consumers, clarify what interventions DPH can take to address clear risks identified by the developing science, and ensure sellers are not skirting the new law and selling to kids."

The Centers for Disease Control and Prevention says 47 people have died from unknown lung disease related to e-cigarettes as of Nov. 20. Since then, nearly 2,300 cases of lung injury associated with the use of e-cigarette or vaping products have been reported to the CDC in 49 states, the District of Columbia, as well as Puerto Rico and U.S. Virgin Islands. The only state that hasn't yet reported any illnesses is Alaska.

Researchers have identified a vitamin E compound often used as an additive to THC, the psychoactive ingredient in marijuana, as a possible cause of the lung injuries. While vitamin E is a common dietary supplement and is also found in lotions, it can be extremely harmful when it's vaped in high concentrations, New York Health Commissioner Howard Zucker recently told NPR.

It ultimately causes an inflammatory process in the lung, Zucker said. "The body is trying to fight off a foreign substance deep in the lung," he added.

Vaping businesses in Massachusetts have been protesting the temporary ban and the threat of looming restrictions since they were first proposed.

"The people that were applauding the governor the loudest were the criminals and gangs that already operated in the states illegal black market," Jon Shaer, executive director of the New England Convenience Store & Energy Marketers Association, told NPR.

The industry group campaigned for months to stop the inclusion of menthol and mint tobacco products in the newly signed legislation, arguing it will have detrimental effects on public safety because consumers will be pushed out of the regulated market and turn to illicit sellers. Shaer also said the new law will have a disproportionate impact on communities of color because they consume more menthol and mint products than any other demographic.

Meanwhile, anti-smoking advocacy groups welcomed the Massachusetts law.

"Absent strong action from the federal government, we urge states and localities to follow Massachusetts' lead," Harold Wimmer, national president and CEO of the American Lung Association, said in a statement.

Wimmer also praised parts of the law requiring retailers to contribute to tobacco cessation and prevention programs."This law is a major win for the residents of Massachusetts and will positively impact statewide tobacco use rates, tobacco related death and disease, and tobacco related health costs."

He added: "Clearing the market of all flavored tobacco products is critical to addressing the youth e-cigarette epidemic."

In September, President Trump indicated support for a national ban on flavored vapes because those products are known to attract teens to vaping but he later moved away from that position. Last week, he hosted a "listening session" on e-cigarette use by minors that included representatives from the vaping and tobacco industries as well as public health advocates.

Trump expressed skepticism at the meeting that such a ban is the right move, noting how Prohibition spurred a black market for alcohol. He suggested the administration might instead raise the legal age to buy e-cigarettes to 21 from 18.

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