It’s official: The Massachusetts ban on the sale of flavored tobacco is a failed policy. The state has lost more than $140 million on menthol cigarettes alone, the regulated and enforced network of licensed retailers has been abandoned, and public health cannot claim a modicum of benefit. A failure by every measure.
During the legislative debate in 2019, we warned that a billion dollars of demand for flavored tobacco existed in Massachusetts and where there is demand, there is a market. The only question would be where the products would be sold. The answer was either through the state’s legal, licensed, regulated, enforced and taxed framework, or illicitly and untaxed — over state lines, online or through the black market. Now, thanks to Massachusetts’ ill-advised policy, it’s the latter.
The sponsors of the bills made their decision early and were effective in convincing the legislature and governor to vacate the market and eliminate licensed, face-to-face gatekeepers for flavored tobacco. Despite a 95% statewide FDA-verified retailer compliance rate, the knowledge that New Hampshire is the No. 1 cigarette export state in the country, and data proving that flavored vape, not traditional tobacco products, was the overwhelming source of youth nicotine initiation, our leaders bit on big anti-tobacco propaganda and banned it all on June 1, 2020.
One year later and with 11 months of cigarette excise tax stamp sales data publicly available, presumptions give way to facts. Massachusetts has lost more than $140 million while New Hampshire and Rhode Island have reaped almost $44 million and $25 million in newfound tax revenue, respectively. Worse, the Ocean State and the Granite State have combined to sell 88% of cigarettes no longer sold in Massachusetts. Yes, nearly 9 of 10 cigarettes once sold in Massachusetts are now sold by New Hampshire and Rhode Island, most of which are brought back into Massachusetts for personal consumption or illegal sale.
Massachusetts forfeited the revenue, abandoned an enforceable system and has nothing to show for it from a health benefit perspective.
No other state has followed the Commonwealth’s lead. Maryland voted against a similar policy. Connecticut opted for a more measured vape policy, and Maine may very likely follow Connecticut’s lead.
The sweeping nature of the law has another unfortunate prohibition. Flavored products authorized by the Food and Drug Administration as having reduced harm potential via the Pre-Market Tobacco Application process are also banned from sale in Massachusetts. To earn a PMTA authorization from the FDA, a product must demonstrate it is “appropriate for the protection of public health” — a high bar for any nicotine product. This process has recently begun and several products have already been authorized. But you will not see any of these flavored products in Massachusetts because of the sweeping law.
Nobody enjoys being wrong and it is indeed a tough pill to swallow, but there is no debating the data. The ban has failed and FDA-authorized products with harm reduction potential have no path back to shelves in Massachusetts. It’s time to repeal the ban on all flavored tobacco, or at the very least pass an amendment that is more targeted with fewer adverse consequences.
Jonathan Shaer is executive director of the New England Convenience Store and Energy Marketers Association.