Mass. first state in the nation to ban flavored tobaccco products

Gov. Charlie Baker picked up the pages of Massachusetts’ new vaping and flavored tobacco law, seconds after signing the legislation Wednesday in the State Library. It was Baker’s third day in a row of major bill signings after lawmakers shipped him a bundle of bills last week before breaking for a holiday recess.
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BOSTON – Massachusetts on Wednesday became the first state in the country to prohibit retail sales of all flavored tobacco products, including menthol cigarettes.

Gov. Charlie Baker also announced that the state’s temporary ban on vaping product sales will now end on Dec. 11, when public health officials are set to adopt a new set of permanent vaping regulations. The sale of flavored tobacco vaping products will still be prohibited on that date under the new law signed by Baker.

Pitched as a way to help protect children from the dangers of nicotine addiction but criticized by adult e-cigarette users, retailers and lawmakers from border communities, the legislation also imposes a 75 percent excise tax on vaping products.

“We are grateful for this landmark legislation and know it will go a long way forward in addressing this epidemic, specifically in aiding our response to this epidemic for our youth and young people, with the simple goal of not allowing another generation to become addicted to nicotine,” Public Health Commissioner Monica Bharel said after Baker signed the bill. “As a physician and commissioner of the Department of Public Health, I will continue to recommend that people not use any vaping or e-cigarette products. These products are not safe.”

The flavor ban law gained traction on Beacon Hill amid a national outbreak of vaping-related lung disease, including three deaths in Massachusetts. The illnesses prompted the Baker administration in September to institute an emergency ban on vaping product sales in the state. That ban had been set to lift on Dec. 24, and Baker announced Wednesday it will instead remain in effect through Dec. 11.

Bharel and Health and Human Services Secretary Marylou Sudders are working to develop new vaping regulations, Baker said, and those rules are slated for a vote at the Dec. 11 meeting of the state’s Public Health Council.

Sudders said the new permanent regulations could include measures setting procedures for compliance investigations and requiring retailers to post signs warning customers of health risks associated with vaping, including severe lung disease.

“Again, the administration will consider other actions including prohibiting the sale of vaping product or products if it is determined by the CDC or the FDA that the product or products are a cause of vaping-related illness,” Sudders said.

The new law’s ban on flavored vaping products takes effect immediately, and the prohibition on selling other flavored tobacco products, including menthol cigarettes, becomes effective next June. Flavored tobacco will not entirely be forbidden in Massachusetts; it will be allowed for sale exclusively for on-site consumption at licensed smoking bars.

Advocates for the law said flavors can encourage young people to begin using tobacco products. Attorney General Maura Healey said she’s heard from “desperate and agonizing” parents of children who are nicotine-addicted and, in some cases, sleeping with vape pens under their pillows.

“You talk to pediatricians, this stuff is real,” she said. “It has real, real detrimental consequences, so this is not by any stretch a nanny-state effort. This is a true and important effort to combat what is a significant public health issue for our young people.”

Sales of vaping products with a nicotine content higher than 35 milligrams per milliliter will be restricted to adult-only tobacco shops and smoking bars. Non-flavored vaping products with less than 35 milligrams per milliliter can still be sold in stores that are licensed to sell tobacco products, including convenience stores and gas stations.

Jonathan Shaer, executive director of the New England Convenience Store and Energy Marketers Association, criticized the new law, calling it in part the product of “anti-tobacco crusaders exploiting a youth vaping crisis.”

“By dismantling the state’s only legal barrier between youth and vape and tobacco, government has fed the illegal market, disproportionately impacted communities of color, and cost the state hundreds of millions in lost tax revenue,” he said in a statement. “All options to pursue policies that actually protect minors from nicotine products, and that protect our adult customers’ right to choose legal products remain on the table.”

After the temporary vape sale ban was announced and while the flavor bill was moving through the Legislature, convenience store and smoke shop owners protested repeatedly, concerned about the effect on their businesses.

Baker said the law’s economic impact “will remain to be seen.”

“I get the fact that we make decisions around here that have consequences,” the Swampscott Republican said. “I happen to believe that the positive consequences in this one outweigh the negative ones.”

The bill Baker signed is based on legislation that passed the House 127-31 and the Senate 32-6 earlier this month. During the debates, some lawmakers said they were worried about the impact on retailers, particularly those near the borders of other states where flavored tobacco would still be available.

Baker has expressed similar concerns in explaining his opposition to hiking the gas tax, saying that a higher tax here would push drivers to fill up in other states. Asked if he applies that same philosophy to tobacco, Baker said he believed a “comprehensive, nationwide policy on this would be much more effective than doing it one state at a time.”

“But the simple fact of the matter is it’s pretty clear at this point in time there isn’t going to be a federal policy on this any time soon, and in the absence of that, I think we all felt we needed to act,” he said.

House Speaker Robert DeLeo said he’s “hoping and praying” that other states will follow Massachusetts’ lead, and advocates praised the Bay State for its first-in-the-nation law.

“One of the most impactful aspects of the Massachusetts law is its inclusion of menthol tobacco products,” American Heart Association CEO Nancy Brown said in a statement. “For decades, tobacco companies have targeted African American, LGBTQ and other populations with menthol products, which have been shown to encourage tobacco use, increase progression to regular smoking and enhance the addictiveness and dependence of tobacco. More than half of all youth smokers use menthol cigarettes.”

Marc Hymovitz of the American Cancer Society Cancer Action Network said the law’s flavor ban, higher costs for e-cigarettes, and provisions aimed at improving access to smoking cessation services set “Massachusetts apart with a comprehensive tobacco control program that proudly outpaces the rest of the nation.”

The Massachusetts Chapter of the American College of Cardiology said the new law, coupled with a 2018 law raising the state’s tobacco-buying age from 18 to 21, “will go a long way in protecting our state from the harmful effects of vaping and slowing the spread of cardiovascular disease from the use of e-cigarettes and other tobacco products.”