Massachusetts is readying to become the first state to pass a generational tobacco ban.
Several of the state’s lawmakers plan on introducing bills that would ban anyone born after a specific date from ever purchasing tobacco products in Massachusetts. It’s unclear which date the proposed cut-off will be, but the report says that the group doesn’t plan on taking away the right to purchase tobacco products from anyone who is legally of age.
Given the bill won’t be introduced until next year, that would mean a date no earlier than 2004, though it might be 2005, according to Charlie Minato of Halfwheel.
Massachusetts won’t be the first state to have generational tobacco ban legislation introduced, but it could be the first one to see it pass. The state is already one of the least tobacco-friendly states in the U.S. It has one of the 10 highest state tax rates on cigars and is one of just two states that have successfully banned some flavored tobacco products.
Earlier this year, the Massachusetts Supreme Judicial Court upheld a local law passed in Brookline, Mass., that banned anyone born after Jan. 1, 2000, from ever purchasing tobacco products and e-cigarettes. That success has created interest from other lawmakers in the state, though as recently as last month, nearby Peabody, Mass., tabled a similar proposal after pushback.
This week, the most prominent attempt at a generational tobacco ban is back in the news. The U.K. Parliament held its second reading of the Tobacco and Vapes Bill. If it becomes law, the legislation, backed by a 415 to 47 vote, would prevent anyone born after January 1, 2009, from buying tobacco.
The Peabody Board of Health in Peabody, Massachusetts, suspended efforts to enact a so-called “generational smoking ban” in favor of greater collaborative efforts with tobacco retailers to curb youth use of nicotine products following a nearly three-hour public hearing on Thursday.
The proposed ban would have permanently restricted the sales of tobacco products to all residents born on or after Jan. 1, 2004 — essentially creating a ban on all tobacco sales in the city over a long period of time.
Those in favor of the ban — based on the first-of-its-kind Brookline ban that survived efforts to overturn it at the state Supreme Judicial Court — argued that tobacco use is a public health danger with this step necessary to eliminate it over time in a way that delivers the least negative impact to local business as possible.
Those against the ban — which include four City Councilors who spoke, they said, on behalf of their constituents on Thursday — said tobacco use is a personal choice after age 21 and that the city should not act as an “island” outside of the state in enacting the ban that could harm local businesses and infringe on individual rights.
The Board of Health voted 2-1 to table the proposal for a year or longer after Director of Public Health Sharon Cameron proposed her plan to create an enforceable regulation agreement with the city’s tobacco retailers that includes increased enforcement of laws that prevent those under 21 from buying products and bans the use of flavored tobacco products, as well as enhanced training, education and monitoring of retailers.
The highest court in Massachusetts ignored objections from vape shop owners and tobacco retailers and upheld the legality of a novel bylaw that bars cigarette sales to anyone born after January 1, 2000, in the town of Brookline. The restriction, the first of its kind in the United States, is designed to prevent future generations from using not only tobacco but also nicotine.
Retailers argued that the 2021 Brookline bylaw was pre-empted by a state law approved in 2018 that raised the minimum age for purchasing a tobacco product from 18 to 21, according to media reports. The retailers pointed out that the Brookline bylaw effectively means someone born after January 1, 2000, will not be able to purchase a nicotine product regardless of their age.
Over time, as the population ages, the bylaw will effectively ban the sale of tobacco products in the town.
In the Supreme Judicial Court’s unanimous opinion, written by Justice Dalila Wendlandt, the court acknowledged the Brookline bylaw is more restrictive than the state’s minimum age standard, but the justices had no issues with that. They said the bylaw “augments the state statute” by further limiting access to tobacco products to persons under the age of 21.
The court rejected claims by the tobacco retailers that the state law was designed to clarify what had become a muddled regulatory environment as municipality after municipality raised the minimum age for buying tobacco products.
“The retailers claim that the purpose of the Tobacco Act was ‘actually to benefit tobacco retailers . . . by eliminating the confusion that arises when the minimum age for purchasing tobacco varies from town to town and city to city across the Commonwealth,’” the opinion said. “To the contrary, the act reflects the legislative intent to protect young persons and other vulnerable populations from the deleterious health effects of tobacco product use.”
The case drew attention in Massachusetts and around the nation and the world and the outcome is likely to prompt more communities to follow Brookline’s lead, creating a patchwork quilt of regulation of tobacco products.
The U.S. states that have banned or heavily restricted vaping product sales have seen increases in combustibe cigarette sales, according to the latest research. The study titled “Impact of Banning Electronic Nicotine Delivery Systems on Combustible Cigarette Sales: Evidence from US State-Level Policies,” said cigarette sales increased by up to 7.5 percent in one state that imposed a full ban on electronic nicotine delivery systems (ENDS).
Credit: Wire Stock
According to the study, published in the medical journal Value in Health, found that a full ban on ENDS was associated with increased cigarette sales of 7.5 percent in Massachusetts and banning non-tobacco flavored ENDS was associated with a minimum of a 4.6 percent increase in cigarette sales among the US states outlawed most flavors (Massachusetts, Washington, and Rhode Island).
ENDS are considered by many to be an alternative nicotine product for adult smokers, and banning them may have unintended consequences, according to the authors of the study. “Cigarette sales in states banning ENDS were significantly higher than would have been observed otherwise,” researchers Yingying Xu, Lanxin Jiang, Shivaani Prakash, and Tengjiao Chen stated in the study, adding that commercial sales data provided the evidence that banning e-cigarettes was associated with increased sales of traditional cigarettes.
The authors looked at cigarettes sales data in 2020 following the start of restrictions on vaping in several states in the U.S. in the fall of 2019 that were imposed in several states following the outbreak of the e-cigarette or vaping product use-associated lung injury (EVALI), which was caused by illegal THC products and not nicotine vaping products.
The researchers also stated that the results “highlight and quantify potential unintended consequences” of ENDS sales restrictions, and the study’s results should be considered in the future as part of public health impact analyses of such policies.
“Additional research is also needed to investigate the impact on spatial spillover effects, illicit markets, and other scenarios that may arise in response to ENDS restrictions. Furthermore, the long-term impact of ENDS sales bans on ENDS and cigarette sales, as well as the distal public health outcomes, will need to be studied as additional data become available,” the report states.
Massachusetts law enforcement officials have reported seizing a sizable amount of banned and untaxed vaping products linked to cross-border smuggling last year. According to a new report by the Multi-Agency Illegal Tobacco Task Force, more than 213,000 electronic nicotine delivery system (ENDS) products were seized by state police and members of the task force in 2021.
“Inspectors and investigators are routinely encountering or seizing menthol cigarettes, originally purchased in surrounding states, and flavored electronic nicotine delivery products and cigars purchased from unlicensed distributors operating both within and outside the commonwealth,” the report states.
The seizures of vaping products dwarfed those of untaxed cigarettes, cigars and smokeless tobacco products by law enforcement agencies, according to news reports. Massachusetts banned the sale of flavored cigarettes and vaping products more than two years ago, but those products are still getting into the state through the blackmarket. The law imposed a 75 percent excise tax the wholesale cost of vaping products.
Credit: Yurii Kibalnik
The task force, which is overseen by the Department of Revenue, has partnered with federal officials to dismantle major cross-border smuggling operations and recover millions of dollars in unpaid tobacco and vaping product excise taxes. Under the new law, anyone caught bringing untaxed e-cigarettes or vaping products into the state can be fined $5,000 for a first offense and up to $25,000 for multiple violations.
The provisions also allow police to seize untaxed vaping products as well as vehicles, boats and airplanes. The state collected more than $370 million in cigarette taxes alone in its last budget year, a 23 percent decline over the previous fiscal year, according to the Department of Revenue. The stae collected more than $13 million in taxes on vaping products.
While many anti-nicotine groups have praised Massachusetts’ ban of flavored tobacco products, the ban is not the success its proponents make it out to be, according to Ulrik Boesen of the Tax Foundation. While a study published in JAMA Internal Medicine found that the sale of flavored tobacco in Massachusetts decreased more than in 27 control states in the wake of the state ban, the authors failed to consider the impact of cross-border trade.
According to Boesen, increased sales in neighboring New Hampshire and Rhode Island almost completely made up for the decrease in Massachusetts. “The end result of the ban, in fact, is that Massachusetts is stuck with the societal costs associated with consumption, while the revenue from taxing flavored tobacco products is being raised in neighboring states,” Boesen wrote on the Tax Foundation’s website.
Now-defunct e-cigarette retailer Eonsmoke and its co-owners have settled a lawsuit with the state of Massachusetts for selling nicotine vaping products to minors. Attorney General Maura Healey today announced that Eonsmoke has agreed to a settlement amount of $50 million, and owners Gregory Grishayev and Michael Tolmach will pay a total of $750,000. The terms of the consent judgment, pending court approval, orders Eonsmoke to end all sales, distribution, marketing, and advertising of any tobacco products to consumers in Massachusetts, according to a press release.
The settlement, filed today in Suffolk Superior Court against Eonsmoke, LLC and Grishayev and Tolmach, resolves allegations that the defendants directly targeted young people for sales of its vaping products through marketing and advertising intended to appeal to youth. Healey’s office also alleged that Eonsmoke failed to verify the age of online purchasers of its products—including electronic nicotine devices, e-liquids, and nicotine pods—and failed to ensure shipments of the products were received by a person 21 years or older, the state’s minimum legal sales age for smoking products.
“Eonsmoke coordinated a campaign that intentionally targeted young people and sold dangerous and addictive vaping products directly to minors through their website,” said Healey. “We were the first to take action against this company and its owners, and today we are holding them accountable and permanently stopping them from conducting these illegal practices in our state.”
Eonsmoke has agreed to a settlement amount of $50 million, and Grishayev and Tolmach will pay a total of $750,000. Eonsmoke ceased all operations and dissolved in 2020. According to the Healey’s complaint, filed in May 2019 and amended in November 2020 to include Defendants Grishayev and Tolmach, the defendants “willfully and repeatedly violated the state’s consumer protection law by using a marketing campaign that directly targeted underage consumers.”
Healey alleges that the defendants directly marketed “Eonsmoke vaping products to young people through social media sites such as Instagram, Snapchat, and YouTube, and included youth popular culture references, social media influencers, celebrity endorsers, cartoons, and internet memes that intentionally minimized or omitted the fact that the vaping products contained nicotine.”
In August of 2020, the Arizona Attorney General’s Office (AGO) obtained a $22.5 million judgment and a permanent injunction against the New Jersey-based vapor company Eonsmoke. The ruling could set a precedent for other states suing vapor companies over marketing practices.
Juul sued Grishayev and Tolmach for trademark infringement in 2018 claiming Eonsmoke illegally marketed its vaping pods as “Juul compatible,” complete with packaging that looked eerily similar to Juul’s. Rather than settle the case, Grishayev and Tolmach were accused of quietly stashing millions in corporate funds out of Juul’s reach — despite a federal judge having warned them last year not to touch the money “outside the ordinary course of business,” according to the New York Post.
“While purposefully using JUUL branding to confuse customers that its illicit products were somehow related to Juul Labs, Eonsmoke flooded the market with pods featuring inappropriate flavors and packaging made with unknown ingredients under unknown quality standards,” said Juul spokesperson Austin Finan at the time. “We will continue to enforce against illegal actors like Eonsmoke to help ensure the vapor category is comprised of companies focused on transitioning adult smokers from combustible cigarettes while following regulations and combatting underage use.”
The town of Brookline, Massachusetts, will prohibit the sale of all tobacco-related products to anybody born after Jan. 1, 2000, reports Filter. The restriction, the first of its kind in the United States, is designed to prevent future generations from using not only tobacco but also nicotine.
The law also prohibits individuals and companies from selling vapor products to anyone in that age category.
In November 2020, Brookline officials voted overwhelmingly for the “first-in-the-nation Tobacco Free Generation,” paving the way for the current ban. On July 19, Massachusetts Attorney General Maura Healey confirmed that the measure did not interfere with any state laws or the constitution of the Commonwealth of Massachusetts, ensuring its legality.
Public health groups lauded Brookline’s decision, which they view as a potential model for others to follow.
“In addition to preventing a new generation from being addicted to nicotine—and facing the long-term health issues that come with it—Brookline citizens who smoke will be further motivated to quit as smoking becomes rarer around them,” said Lauren Huber, the executive director of Action on Smoking and Health, in a statement.
Harm reduction proponents, by contrast, lambasted the idea. “Not only will enforcement of this become a nightmare, but it continues to push prohibitionist policies that inevitably send people to underground, unregulated markets,” Matt Sutton, the director of media relations for the Drug Policy Alliance.
“The whole measure is ridiculous, especially if you imagine how it will function in 2030 or 2040,” echoed Clive Bates, a tobacco control expert and former director of ASH (UK). “It infantilizes adults, sets up illegal trade between older and younger age groups, and ultimately aims at creeping prohibition, with all the crime and abuse that will bring.”
Brookline has a history of aggressive tobacco control. The suburb was an early adopter of indoor smoking bans, raised the legal age to purchase tobacco to 21 in 2014, and capped the number of tobacco licenses for retailers in the market. In the spring of 2019, Brookline banned the sale of flavored tobacco and vaping products, including menthol. Six months later, Massachusetts passed the same kind of flavor ban statewide.
The U.S. state of Vermont is once again floating the idea of proposing legislation that seeks to ban the sale of flavored vaping products. Support for the bill is gaining traction in the state’s senate and would also ban flavored combustible tobacco, including menthol cigarettes.
The ban was originally proposed in early 2020 as a way to prevent youth use, but was sidelined after the Covid-19 pandemic began to impact the country. Ginny Lyons, chair of the Senate Committee on Health and Welfare, said in an interview this week that she’d like the Senate to pass the bill, S.24, “as quickly as possible.” She said use of nicotine products by young people has increased during the Covid-19 pandemic, according to vtdigger.com
If Vermont approved a ban on flavored e-cigarettes, it would be the third state to do so. Massachusetts banned flavored vapes and tobacco products in 2019, and California followed suit last year. However, California’s law was blocked after the tobacco industry moved successfully to have voters decide on the ban in a statewide referendum next year.
“During the pandemic, we’ve seen a real fallback from all the progress we’ve made on limiting youth access to tobacco and other flavored products, so it seems more important than ever to move forward with this bill,” Lyons said. “If we were only to eliminate all the other flavors and leave menthol on the market, we would see a transition of people to those menthol products, and we would be backsliding again.”
