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Baker shortens e-cigarette ban but signs law restricting sales of flavored tobacco, vaping products

Vaping products in New York City. Jeenah Moon

Governor Charlie Baker signed into law Wednesday the nation’s toughest restrictions on the sale of flavored tobacco and vaping products and announced he would end his temporary ban on all e-cigarette sales early, paving the way for them to return to store shelves as soon as mid-December under strict new rules.

Baker said his ban on nicotine and pot vape sales, which started in late September in response to a nationwide surge of vaping-related illnesses, would end on Dec. 11, when health officials pass rules implementing the new law. He framed his dual actions as Massachusetts policy makers protecting public health in a realm where Washington has fallen short.


“It is pretty clear at this point in time there isn’t going to be a federal policy on this anytime soon,” though that would be best, Baker said. “But I cannot understand why anybody would think — given all the data and all the evidence, all the information that’s out there at this point in time — that the right thing for us to do would be nothing.”

The governor also said he would leave oversight of marijuana vaping products to state pot regulators, who have halted cannabis vape sales.

The Thanksgiving eve announcement was an inflection point in the national debate between consumer freedom and public health.

The new law bans the sale of all flavored tobacco products, including menthol cigarettes, and gives the Department of Public Health greater regulatory authority over e-cigarettes.

Those rules, Baker officials said, could include mandating signs in retailers on the dangers of vaping and provisions to preserve the department’s ability to ban products in the future.

The Cannabis Control Commission, which oversees the state’s pot industry, has quarantined marijuana oil vapes while regulators decide how to ensure safety. The agency is working to properly test the vapes for vitamin E acetate, a honey-like additive that federal officials have identified as a main culprit in the outbreak of illnesses. The commission next meets Dec. 19.


Cannabis leaders praised Baker’s announcement.

“In the spirit of the season, hallelujah,” said David O’Brien, president of the Massachusetts Cannabis Business Association.

Federal officials have linked most of the illnesses nationwide to illicit vaping products, particularly additives used in cannabis oils. Unlike in other states, the Department of Public Health has not disclosed whether any of the state’s 68 vaping-related lung injuries were believed to be caused by regulated marijuana or nicotine products.

The cannabis commission formally requested that information earlier this month, and on Friday, two commissioners took the unusual step of testifying at a public hearing to urge the department to share that data. On Wednesday, Dr. Monica Bharel, the state public health commissioner, said she didn’t remember whether any of the state’s illnesses were linked to licensed cannabis retailers, but she said the department was collecting that information and planned to share it with the public and with the commission soon.

“Given the urgency for medical cannabis patients in particular, we need that information in order to make our investigation as efficient as possible and to inform our regulations,” Commissioner Shaleen Title said.

The new tobacco and nicotine vape law targets online and retail sales of both traditional and electronic cigarettes, including banning sales of mint and menthol flavors of each. It hits vaping products with a 75 percent excise tax and dramatically hikes the penalties for selling or providing tobacco to underage customers, making it a $1,000 fine for a first offense.


The law prohibits the sale of menthol cigarettes as of June 2, 2020; the other flavor products are banned immediately.

Convenience stores can only sell low-dose, nonflavored vape pens. Stronger products can only be sold at licensed, adult-only retail tobacco retailers and smoke bars. Consumers can only purchase flavored vape products at 21-plus smoking bars and could not take them home. But consumers won’t face punishments for possessing flavored vape products.

Beacon Hill’s action on the vaping issue stands in contrast to the Trump administration, which has backtracked on promises to enact a similar ban on fruit, candy, and mint-flavored e-cigarettes.

Health advocates also say the law is a crucial step to protect a generation of young people from getting hooked on nicotine products amid an “epidemic” of teen vape use.

“This is not, by any stretch, a nanny state effort,” said Attorney General Maura Healey, describing conversations with worried pediatricians and parents desperate to help their severely addicted children. The law, she said, is an effort to combat “a significant public health issue for our young people.”

Nearly 2,300 people nationwide have suffered vaping-related illnesses, and at least 47 people have died, including three Massachusetts residents.

While medical professionals praised the new law, it also triggered backlash from consumers and small business owners who said it will take away a key alternative for people trying to quit smoking cigarettes and will push people to the illicit market.


Some vape consumers vowed to drive to New Hampshire.

“The plain tobacco e-juice doesn’t taste like anything,” said Jay Wolfe, 46, of Roxbury, an ex-smoker who prefers apple-tobacco flavored vapes. “It’s like you’re huffing on the fog machine at a concert. It’s just pasty and dry and eh.”

Anshuman Patel, owner of Bizarro Smoke in Brighton, New Bedford, and Fall River, said the law would likely kill his and other struggling vape businesses because most customers buy flavored e-liquids.

“It looks like the government has made up their mind to shut all of these small businesses down,” said Patel, who laid off two employees because of the ban. “People aren’t going to change their tastes — they’re just going to find some way to get the flavors online or from other states.”

New Hampshire Governor Chris Sununu said he opposed banning flavors, adding “our focus should be” on keeping vapes out of high schools.

But doctors praised the law, saying it protected young people from Big Tobacco companies pushing addictions for profit.

“Our children’s lungs are guinea pigs for these products,” said Dr. Alicia Casey, a pediatric pulmonologist at Boston Children’s Hospital whose team has treated around 25 teens for suspected vaping-related lung illnesses. The law will reduce teen vaping by making the products less accessible and “it sends the message that these things are not safe, which is different than the message they’re getting from Big Tobacco.”


Senator John F. Keenan, the lead sponsor of the flavor ban in the Senate, said he wasn’t worried about people buying unregulated flavored products.

“When demand for product drops overall, the black market disappears,” the Quincy Democrat said. “That’s the goal of the legislation.”

Felicia Gans, John R. Ellement, and Travis Andersen of the Globe Staff contributed to this report.