December 3, 2019

Massachusetts Gov. Charlie Baker (R) on Wednesday signed into law a bill that imposes new state restrictions on sales of flavored tobacco and vaping products, including menthol cigarettes, in response to the growing number of youth using e-cigarettes and an outbreak of a vaping-linked lung illness, Reuters reports.

The new restrictions place Massachusetts "at the forefront" of the U.S. crackdown on flavored tobacco products by implementing the strictest regulations on the products in the United States thus far, according to the Wall Street Journal. The new restrictions come after Baker in September declared a public health emergency over e-cigarette use and vaping and ordered a temporary, four-month ban on the sales of all e-cigarette and vaping products in the state.

Law details

The state's new law, called An Act Modernizing Tobacco Control, implements several new restrictions on sales of certain tobacco products.

For example, the law immediately restricts sales of flavored e-cigarette and vaping products containing nicotine to licensed smoking bars and mandates that consumers can use the products only at those locations. Those same restrictions will apply to sales and use of all other flavored tobacco products, including menthol cigarettes, beginning on June 1, 2020.

The law also imposes new restrictions on unflavored e-cigarette and vaping products. For instance, the law immediately restricted sales of e-cigarette and vaping products with nicotine contents higher than 35 mg/ml to establishments that only admit adults ages 21 and older. The law also will impose a 75% excise tax on the wholesale price of nicotine e-cigarette and vaping products, in addition to the state's 6.75% sales tax, beginning June 1, 2020.

Further, the law provides Massachusetts' Department of Public Health (DPH) with new authority to regulate sales of nicotine e-cigarette and vaping products. For example, the law grants DPH the authority to issue regulations requiring e-cigarette and vaping-product manufacturers to inform the public about the potential side effects of e-cigarette use and vaping.

Next steps

Baker on Wednesday said the state's temporary ban on e-cigarette and vaping-product sales, which took effect in September, will remain in effect until Dec. 11, giving state officials until then to develop and implement new regulations in accordance with the law. "As we sign this new legislation implementing new restrictions on vaping and tobacco products, we are also keeping the temporary ban in place as [DPH] develops permanent regulations," Baker said.

Baker's office in a release said Massachusetts' Public Health Council will convene at a regularly scheduled meeting on Dec. 11 to consider regulations developed by DHS in accordance with the law to:

  • Clarify the DPH commissioner's authority to prohibit sales of e-cigarette and vaping products found to cause the vaping-related lung illness or pose a substantial risk to public health;
  • Clarify under which procedures DPH or local boards of health can inspect retail locations and products to determine compliance with the new law;
  • Clarify under which procedures DPH or local boards of health can impose penalties for violations of the new law;
  • Establish how retailers and manufacturers must comply with the law's restriction on e-cigarette and vaping products with nicotine contents higher than 35 mg/ml;
  • Require any location where e-cigarette and vaping products are sold to post signs warning consumers of the potential health risk of e-cigarette use and vaping, including the vaping-linked lung illness; and
  • Require convenience stores and all non-age restricted retailers to place e-cigarettes and vaping products permitted to remain on the market behind their counters.

Comments

Baker said the new law "goes a long way toward restricting access to the most addictive kinds of nicotine and vaping products."

American Lung Association CEO Harold Wimmer said the law "simply raises the bar for tobacco control across the country."

The Vapor Technology Association, a vaping industry trade group that had challenged the state's temporary ban on sales of e-cigarette and vaping products, said the new law will not prevent youth from using the products, but it will make it more difficult for adults to use e-cigarettes to help them quit using traditional cigarettes.

A spokesperson for the British American Tobacco PLC unit Reynolds American, which is a major maker of menthol cigarettes, said the company is considering whether to challenge the new law in court because the company believes the state law conflicts with federal policies that dictate which flavored tobacco products are permitted on the market.

Baker acknowledged that there are limits to how states can regulate cigarettes but said "it's becoming increasingly clear the federal government is not going to act decisively."

Massachusetts Attorney General Maura Healey (D) said the state "will happily continue to defend any challenges to this or future laws" (Kamp, Wall Street Journal, 11/27; Raymond, Reuters, 11/27; Baker release, 11/27). 

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