In June 2020, Massachusetts became the first state to implement a ban on menthol cigarettes and flavored tobacco products. Although supporters of this proposal believed that the ban would curb usage of these products, that’s not what has happened. Massachusetts has not realized any public health benefits as sales simply dispersed across borders, leaving the state with less revenue and a significant growing illicit market.
As a former Massachusetts State Trooper who served 24 years protecting citizens in the Commonwealth, I can tell you that prohibition doesn’t work. The Massachusetts flavor ban on tobacco products is yet another illustration that policies aimed at banning products do more harm than good. The 2020 flavor ban only increased illicit markets and related criminal activities and now the state’s cigarette smuggling rate ranks in the top 10.
Instead of relying on punitive measures that target consumers and underserved communities, the state should focus on harm reduction products that aim to reduce smoking and addiction. These programs would include community education initiatives that aim to educate individuals on the health risks associated with tobacco use. Additionally, these programs could offer support to individuals who are trying to quit smoking.
Even before Massachusetts passed the 2020 flavor ban, the state had a problem with tobacco smuggling (which is a crime), as evidenced by the formation of a state-run, multi-agency Illegal Tobacco Task Force in 2015. The flavor ban only worsened the problem. According to the Task Force’s 2023 annual report, smuggling of untaxed flavored products remains the primary challenge for tobacco enforcement in the Commonwealth, with seizures of illicit tobacco products increasing over 300% last year.
Even with numerous successful criminal investigations, the illegal market continues to operate in Massachusetts, effectively shifting millions in tax revenue to the illegal black market, including $120 million from tobacco taxes the first year following the ban. On top of the tax loss is the state’s spending of $1 million for the Task Force budget for enforcement efforts and additional unseen costs.
It remains the responsibility of Massachusetts’ law enforcement agencies to combat the illicit market and enforce the law. But given the significant increase in illicit activity, the Task Force has conceded that it needs more enforcement tools – one of their recommendations is to expand criminal charges to individuals for possession with intent to sell. This issue exposes the tension in prohibition laws: authorities must either commit to do what is necessary to enforce the rule, increasing interaction between police and the community, or turn a blind eye to lawlessness and watch the illicit activity grow unchecked.
Massachusetts authorities are now faced with taking divergent paths: enforcing against cigarette possession that will not only severely strain existing police-community relations, but will also be in direct conflict with the Commonwealth’s approach to similar substances, like cannabis. In 2018, Massachusetts became the first state on the East Coast to allow adults to buy cannabis for recreational use. What a dichotomy of policy to take away adult consumer choice and use for menthol cigarettes – legal, FDA-regulated products – while at the same time allowing for use of cannabis, which remains illegal at the federal level.
The explosion of contraband tobacco product trafficking has significant negative consequences. First, it undermines the effectiveness of tobacco control policies, as high taxes and bans become less effective when consumers can purchase cheaper, illegal cigarettes, some of which will be counterfeit products manufactured in other countries in uncontrolled conditions. Second, it creates a public health risk, as smuggled cigarettes may not comply with underage sales restrictions, product standards regulations and may contain higher levels of harmful ingredients or chemicals. Finally, the illegal trade of cigarettes can also be linked to organized crime, money laundering, and other illegal activities.
Other states and the FDA should seriously consider the Massachusetts case study as a cautionary tale how flavored tobacco product bans can increase illicit markets and hurt the brave men and women who work tirelessly to protect our communities.
Todd McGhee is president of 508 Group, a certified MBE Massachusetts-based consulting and training firm recognized as international subject matter experts on counter-terrorism, violent extremism, defensive tactics and proactive threat mitigation strategies for protecting critical infrastructure.