Two years after Massachusetts approved menthol ban, some lawmakers seek reversal

The Massachusetts Statehouse. Photo courtesy of Wikimedia Commons.

By Madeleine Pearce
Boston University Statehouse Program

BOSTON – In 2019, Massachusetts became the first state to prohibit sales of flavored tobacco products, including menthol. A group of lawmakers wants to see the ban go up in smoke, having filed legislation to repeal or limit it.

When Gov. Charlie Baker approved the ban in 2019, he cited health concerns after a string of vaping-related deaths, and praised the ban for “restricting access to the most addictive kinds of nicotine products.”

Tobacco-related health care costs total $4.08 billion annually in Massachusetts, including $1.26 billion in Medicaid costs, the Campaign for Tobacco-Free Kids estimates. Smoking often leads to cancer and cardiovascular diseases, two health conditions among the leading causes of death in the United States.

Critics have charged that the ban has pushed Massachusetts consumers into neighboring states, causing Massachusetts to miss out on sales and tax revenue. Flavored-tobacco vaping products were subject to a 75% state excise tax of the original price.

State Sen. Ryan Fattman, R-Sutton, and state Rep. Alan Silvia, D-Fall River, have filed legislation to reallow the sale of menthol cigarettes, leaving e-cigarettes or vaping products banned. State Sen. Patrick O’Connor, R-Weymouth, and state Reps. Daniel Cahill, D-Lynn, and Daniel Ryan, D-Boston, filed a separate proposal to allow sales of any tobacco product that the Food and Drug Administration designates as “modified risk,” a label for products expected to “reduce harm or the risk of tobacco-related disease,” according to the FDA.

Lawmakers heard testimony on the proposals at a Nov. 3 committee hearing.

Menthol and flavored tobacco include additives that improve the bitter taste of tobacco, with young smokers largely preferring menthol cigarettes. Flavored tobacco often is youths’ first experience with the product, with nearly 80 percent ages 12 to 17 and young adults ages 18 to 25 reporting that their first tobacco products were flavored.

No complete national ban on flavored tobacco has been implemented, and the FDA has cited evidence that menthol cigarettes and other available flavored tobacco might lead users to consume “potentially less harmful products.” The FDA, though, has said it is working toward banning flavor in cigarettes and cigars.

While health issues and underage smoking led to the initial Massachusetts ban, retailers lead the effort to reallow sales.

“From a retailer’s perspective, this is very difficult to watch,” said Jon Shaer, executive director of the New England Convenience Store and Energy Marketers Association. “You watch customers getting products they once got at your store in Rhode Island, in New Hampshire, or the guy on the corner.”

After the 2019 ban went into effect, reports of “black market” flavored tobacco sales increased, and consumers left the state to make purchases, according to Kyle Feldman, vice president of National Convenience Distributors. The Massachusetts Taxpayers Foundation estimates that the state could lose over $100 million per year in tax revenue from sales.

“My company is one of the largest cigarette suppliers in the Northeast,” Feldman said. “The sales to New Hampshire have jumped 60 percent in the last year.”

While smoking rates have decreased, Pittsfield’s 2019 smoking rate, at 22.3 percent, was nearly twice that of the state average.

Marc Hymovitz, director of government relations at the American Cancer Society, said lawmakers should consider younger generations’ health to maintain the trend before allowing flavors in tobacco products.

“Menthol specifically acts to mask the harsh flavor in tobacco,” Hymovitz said. “The real cost is in our kids’ health.”

Racial justice concerns played a role in the 2019 debate, although leading groups have found themselves on opposite ends of the issue with regard to the potential for a federal ban on flavored cigarettes and cigars. The NAACP and American Civil Liberties Union have emphasized that the tobacco industry targets Black consumers in marketing.

“For decades, the tobacco industry has been targeting African Americans and have contributed to the skyrocketing rates of heart disease, stroke, and cancer across our community,” the NAACP said in support of a ban.

The ACLU, meanwhile, has argued that prohibiting products could lead to criminalization.

“Such a ban will trigger criminal penalties, which will disproportionately impact people of color, as well as prioritize criminalization over public health and harm reduction,” a letter signed by the ACLU said

The Massachusetts 2021 Anti-Vaping Curriculum Resource Guide — it’s a resource seeking “to improve the health and wellbeing of the U.S. population in the 21st century” — leads schools in anti-tobacco education, an issue supported by opponents and supporters of the new legislation.

“Flavored products are, without a doubt, what attract young people to cigarettes and vape,” said state Sen. John F. Keenan, D-Quincy. “That’s what these bills are designed to do. They open the door again to allow young people to be targeted.”

Anna Bettencourt, senior category manager at Energy North Group, agrees that adults still should have options, but she supports education for younger generations.

“I believe that true public health is education,” Bettencourt said. “We should put more education into youth prevention, but I believe an adult has the right to make a choice.”

Despite the business that a loosening of the state ban would bring to Massachusetts convenience stores, some opponents say the health costs outweigh the revenue potential.

“Massachusetts has made great strides against tobacco, but this fight is not over,” said Gwen Stewart, executive director of Tobacco Free Mass. “This is an industry that lied to the public for decades about the harms of smoking. Why would we believe them now?” 

This article originally appeared in the Berkshire Eagle.

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