There have been no winners in the Massachusetts flavored tobacco ban debacle: the state didn’t win, retailers didn’t win, customers wishing to buy legal adult products didn’t win and those looking to reduce smoking didn’t win.
The ban has been a colossal failure that has only siphoned millions from the state with no impact on youth smoking while creating a massive problem for law enforcement charged with policing a thriving new illicit market.
The law went into effect in 2020 and resulted in a menthol cigarette excise tax revenue loss of nearly $127 million in the 12-months following the ban. Since then, that revenue has not returned, leaving Massachusetts with untold millions in lost excise taxes, as nearly 90% of sales have shifted out of state, primarily to bordering New Hampshire and Rhode Island.
All these crucial lost tax dollars could have been used for awareness, education, prevention and public health. Instead, they’ve gone to other states. What is crystal clear is that the unintended consequences we warned about three years ago have come to fruition as these legal products were removed from licensed retailers and placed into the all-too-willing hands of criminals, including organized crime factions.
A recent report by the Massachusetts Illegal Tobacco Task Force found contraband cigarette seizures in Massachusetts soared in 2022 with little impact on smoking trends. Moving tobacco out of the heavily regulated retail sales environment has been a disaster that is costing taxpayers untold millions while smoking habits remain unchanged. The report found that contraband cigarette seizures skyrocketed from just 5,377 in 2021 to 18,483 in 2022. In addition, seizures of illicit smokeless tobacco, which was also banned along with menthol, were up 800% in 2022.
What the ban actually did was create a problem. These legal adult products were in a licensed permitted environment that was subject to regulation, but now have been moved to the street corner. It is a confounding move from a policy perspective, as we’ve seen the Commonwealth move other once-contraband products off the illicit market and into regulated environments.
The Legislature is more and more frequently shifting a wide variety of products intended for adults of a legal age into a permitted and regulated environment to reduce youth access. But lawmakers bucked this trend in the most harmful of ways by removing menthol, flavored cigars and chewing tobacco and other legal products from that regulated environment.
The data is clear that tobacco users will find their chosen product and criminals – including organized crime and street gangs – will be more than happy to meet the demand. And who will pay the skyrocketing law enforcement costs that result from these failed policies? Taxpayers.
State troopers and local police officers in Massachusetts are now faced with having to police street corners where criminals are selling contraband cigarettes at astronomical markups.
Worse, the state has no plan for funding the surging demand for enforcement nor any system to cover rising costs. Police officers are now putting their lives at risk confronting petty criminals selling products that are legal in neighboring states while communities already facing over-policing are seeing increased law enforcement scrutiny in their neighborhoods.
The fact is, the solution to curbing youth smoking and reducing adult smoking is to keep these products on the shelves of licensed retailers who check IDs and remit tax revenue that can be used to fund anti-smoking efforts.
The evidence is clear: the illicit market grows every day, denying crucial tax dollars and fueling violence and criminal activity, while simultaneously stripping citizens of their right to purchase legal products. It’s not too late to repeal this failed policy.
Peter Brennan is executive director of the New England Convenience Store and Energy Marketers Association. Steven W. Tompkins is the Sheriff of Suffolk County in Massachusetts and the Vice President of Region I for the National Organization of Black Law Enforcement Executives.