Massachusetts is experiencing the aftershocks of menthol prohibition. In 2020, the Bay State became the first in the country to enact a ban on menthol cigarettes and flavored cigars, smokeless tobacco and vaping products. As such, it’s a real-life case study of the potential impacts of a proposed federal menthols ban. And while research on smoking rates currently raises as many questions as answers, the escalation of nicotine law enforcement is beyond dispute.
Almost three years into the Massachusetts ban, some apparently contradictory things are unfolding. One study found that sales of all cigarettes by licensed retailers declined by almost 33 percent. Proponents of the ban believe this is proof that it works.
But the inconvenient truth is, people who want menthol cigarettes can buy them in the bordering states of Connecticut, New Hampshire, New York, Rhode Island and Vermont. “In the 12-month period following the comprehensive flavor ban in Massachusetts, the state sold 29.96 million fewer cigarette packs compared to the prior period,” reported a preliminary study on this question. “However, a total of 33.36 million additional cigarette packs were sold during the same post-ban period in the counties that bordered Massachusetts.”
And if travel to another state isn’t an option, “sophisticated tobacco smuggling operations” are now serving Massachusetts, according to a new report by the state’s Multi-Agency Illegal Tobacco Task Force. The expanding “tobacco diversion” law enforcement bureaucracy has ramped up its operations. State police and the Department of Revenue’s Criminal Investigations Bureau (CIB) are increasing inspections and seizing more illegal, untaxed products.
The underground, cross-border market is thriving, just as opponents of prohibition predicted.
In one example cited by the report, “The CIB executed an administrative search warrant and conducted an inspection of an unlicensed tobacco distributor…and seized a large quantity of untaxed ENDS [electronic nicotine delivery system] products, OTP [other tobacco products] and Newport Menthol cigarettes affixed with New Hampshire excise tax stamps.” It appears that the Task Force—so far—is targeting distributors, retailers and organized smugglers, rather than individuals in possession.
The underground, cross-border market for flavored vapes and menthol cigarettes is thriving, just as opponents of prohibition predicted. Law enforcement has confiscated huge amounts of illegal products, “resulting in a strain on the Task Force’s storage capacity.” The Task Force is also trying to figure out how to “safely and lawfully dispose of ENDS products.” In an ironic twist, it will destroy large quantities of vastly safer vapes while combustible cigarettes remain legal and on sale everywhere.
People arrested by State Police detectives are being indicted for violating the flavor ban and charged with felonies or misdemeanors related to trafficking unstamped cigarettes, tax evasion, conspiracy to traffic in contraband smokeless tobacco, and money laundering. Currently, people convicted face “imprisonment for not more than five years.” The nicotine warriors call for increased penalties for tobacco trafficking “based on the amount of tobacco sold or possessed with intent to sell serving as the basis for a misdemeanor or felony charge.” This language is reminiscent of the war on crack in the 1990s.
Welcome to the War on Nicotine in Massachusetts, circa 2023.
“It shows that bans do not impact everyone the same.”
When it comes to smoking rates, a new study published in JAMA Internal Medicine had mixed findings. The study estimated the association between the menthol ban and current cigarette smoking in Massachusetts. It found an overall decline in self-reported smoking—although people smoking illicitly obtained products might be less likely to report their use. But within that were wide demographic variations.
A large decrease in smoking among Black men was reported, together with significant decreases among Hispanic men and women. But there was a large increase among Black women, and rates also substantially increased among Asian-American and Indigenous women. The authors stress that the research shouldn’t be taken to indicate causation. But this confusing picture nonetheless shows startlingly unequal outcomes.
“It’s a cross-sectional study, so it’s limited in the conclusions we can draw,” Dr. Annie Kleykamp, a research analyst and science writer at BAK and Associates, told Filter. “It shows that bans do not impact everyone the same. There can be simultaneous harms and benefits and it is critical to not hyper-focus on one or the other, or on some populations and miss the combined net harms or benefits of policies.”
A powerful rationale for the prohibition on menthol cigarettes is the targeting of the Black community by tobacco companies. Nearly 85 percent of Black Americans who smoke, smoke menthols. Smoking-related diseases are the leading cause of death in this population, and Black Americans who smoke are more likely to die of smoking-related causes than their white counterparts.
Public health organizations, the Campaign for Tobacco Free Kids and the African American Tobacco Control Leadership Council have fought to ban menthols, arguing it would save Black lives. They contend that making these products illegal and unavailable would force adults to quit smoking and also dissuade young people from starting. The Food and Drug Administration is on board. Last year, FDA Commissioner Robert Califf presented a plan for banning menthol products to a congressional subcommittee.
Tobacco control authorities in Massachusetts are on a dangerous trajectory to expand the scope of policing the growing illicit tobacco market.
But this approach ignores the potential further criminalization of Black communities that are already targeted by the drug war. And the demonstrated futility of prohibition, when supply will inevitably follow demand, only less safe when regulation is removed—think opioids and fentanyl. For these reasons, dozens of drug policy and human rights organizations, including the ACLU, have spoken out against a federal menthols ban.
Tobacco control authorities in Massachusetts are on a dangerous trajectory to expand the scope and budget of policing the growing illicit tobacco market. As history has shown, that will create yet more “net harms.”
The policy that would create “net benefits” is tobacco harm reduction, and making menthol vapes and other safer nicotine products widely available and affordable.
Update, March 15: This piece has been edited to add Dr. Kleykamp’s affiliation.
Photograph by Helen Redmond
The Influence Foundation, which operates Filter, has received grants from Reynolds American, Inc, which manufactures Newports. Filter‘s Editorial Independence Policy applies.