Massachusetts, Planning Asset Forfeiture, Leads the War on Vaping

    One of the states to succumb to the national vaping panicwhich rages on despite Trump’s recent indication that he may pull back from a national ban on flavored vapes—is Massachusetts.

    After Gov. Charlie Baker declared a public health emergency in response to an outbreak of vaping-related lung injuries and deaths, Massachusetts implemented a four-month ban of all vapes in September. It applies to all online and retail store sales of vaping products, including nicotine and marijuana.

    This disastrous decision has resulted in people who vape nicotine, as well as many of the 67,000 medical cannabis patients across the state, being cut off from supplies. Some nicotine vapers will return to smoking cigarettes, which remain fully available, while medical marijuana patients and other marijuana vapers might turn to the illicit market.

    State politicians and public health officials have expressed little concern for the health and safety of adults who vape nicotine or use cannabis for health problems. Frank Shaw, a 66-year-old medical marijuana patient who spoke against the ban said, “It has been devastating to patients who depend on vaping cannabis products to relieve pain.”

    Cannabis patients won a small victory on November 12, when the ban was partially lifted, specifically for medical-use vaporizers that use raw marijuana flower.

    But the Massachusetts House of Representatives is still hell-bent on unleashing a drug war on nicotine. On November 13, the House approved a draconian bill titled, “An Act Modernizing Tobacco Control” that would ban all flavored tobacco products including menthol cigarettes and e-cigarettes (which are not tobacco products).

    Bill H.4183 would also impose a whopping 75 percent excise tax on “electronic nicotine delivery systems,” including e-liquids and devices. The price increase would put these products out of reach for thousands of low-income and vulnerable smokers who want to switch.

    Together, the ban on flavors and dramatic price increases will fuel a large illicit market; and unregulated markets, as we know, increase risks for consumers.

    Which populations do you think would be predominantly targeted?

    But there’s more. The bill also contains excessive fines for “a person who knowingly purchases or possesses an electronic nicotine delivery system not manufactured, purchased or imported by a licensed electronic nicotine delivery system distributor or licensed electronic nicotine delivery system retailer.” The fine can be up to $5,000 for a first offense and up to $25,000 for a second offense. Which populations do you think would be predominantly targeted by such fines?

    Taking a page directly from the War on Drugs, the bill contains a provision for asset forfeiture. H.4183 allows a state or local police department that “discovers an untaxed electronic nicotine delivery system in the possession of a person who is not a licensed or commissioner-authorized electronic nicotine delivery system distributor” to seize both the product and the “receptacle” in which it is found.

    What constitutes a “receptacle” is open to interpretation, but past interpretations under such laws include cars, boats, airplanes and homes. Under this bill, unapproved vaping products would be treated like illegal drugs, possession of which is enough to justify forfeiture. In order to avoid having their assets taken, a person will have to provide an invoice or sales receipt  to prove the vaping product was bought legally. Who carries around receipts? Confiscated items will be sold and the money deposited in the state’s General Fund.

    Asset forfeiture has been argued to violate constitutional rights and represents a cash-grab to fund state and local governments as well as law enforcement agencies. As one Filter article pointed out, “assets are seized predominantly from the poor and people of color.”

    Given the long and well-documented history of asset forfeiture, it’s clear that enforcement of bans on nicotine products will not be race– or class-neutral. And once “policing for profit” agencies come to rely on the funds generated by asset forfeiture, they will go all the way to the Supreme Court to fight to keep that money.

    Far from “modernizing tobacco control,” such thinking will destroy the industry that makes life-saving products, deny smokers access, and punish, fine and steal from those who dare to defy it. Small wonder that Drug Policy Alliance founder Ethan Nadelmann recently expressed his fear that we’re looking at “the great new drug war of the 21st century.”


    Detail of photo by Coastal Elite via Flickr/Creative Commons.

    • Helen is the senior editor of Filter. She has written about nicotine, mental health and drug policy for publications including Al Jazeera, AlterNet, Harper’s and The Influence. As an LCSW, she works with drug users in medical and community mental health settings. An expert on tobacco harm reduction, she provides training and consultation on mental health, nicotine use and THR, and in 2016 organized the first Tobacco Harm Reduction Conference in the US. Helen is also a documentary filmmaker.

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