In 2022, I wrote an article for Reason predicting that it was only a matter of time before selling flavored tobacco products landed an American behind bars. Almost three years later, that day has arrived in Massachusetts. According to a press release from the Middlesex district attorney and the Department of Revenue, the owner of a Marlborough vape shop has pleaded guilty to three counts of attempted tax evasion arising from the sale of e-cigarettes brought in from across state borders. He was sentenced to serve six months in the House of Correction and five years probation.
In 2020, Massachusetts became the first state to implement a comprehensive ban on all flavored tobacco products, including menthol cigarettes and flavored e-cigarettes. Violation of the flavor ban is only a misdemeanor, but since flavored tobacco products are sold on the illicit market, sellers simultaneously violate state tax law. This brings much harsher penalties into play. In Massachusetts, evading taxes on tobacco products is a felony punishable by up to five years in prison.
Criminal justice reformers have warned for years that flavor bans would encourage illicit markets, creating felony crimes in the process. For example, a 2021 coalition letter signed by groups such as the American Civil Liberties Union and National Association of Criminal Defense Lawyers warned that a federal menthol ban would create "a massive law enforcement problem for states, counties, and cities since all states treat unlicensed sale of tobacco products as a crime—usually as a felony punishable by imprisonment."
