Civil forfeiture

Pending Ban on Flavored E-Cigarettes in Massachusetts Authorizes Forfeiture of Vapers' Cars

The bill, which the state House passed yesterday, says police may seize vehicles in which they find untaxed vaping products.

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According to the Institute for Justice, Massachusetts has "the worst civil forfeiture laws in the country." It looks like state legislators are about to outdo themselves.

The Massachusetts House of Representatives yesterday approved a bill that would ban flavored e-cigarettes, impose a 75 percent excise tax on "electronic nicotine delivery systems" (including e-liquids as well as devices), and authorize forfeiture of cars driven by vapers caught with "untaxed" products. The House approved H4183 by a vote of 127 to 31, and the state Senate is expected to consider it next week.

An "emergency" ban that Gov. Charlie Baker (R) imposed on all vaping products in September will expire on December 24. This bill permanently bans "flavored tobacco products," including menthol cigarettes as well as vaping liquids that taste or smell like anything other than tobacco. It does not apply to hookah bars or marijuana vapes.

Rep. John Mahoney (D–Worcester), chairman of the Joint Committee on Public Health, claims e-cigarette flavors "were created and designed for one reason only—for young people to become addicted to nicotine and to become lifelong users." Since adults who have switched from smoking to vaping overwhelmingly prefer flavors other than tobacco, that statement is either shockingly ill-informed or brazenly mendacious.

Once their preferred flavors are no longer legally available, some of those vapers may go back to smoking, a far more dangerous habit, while others may buy potentially tainted pods or e-liquids on the black market. Or they might buy flavored e-liquids in states where they are still legal and bring them back to Massachusetts. But vapers who try to find ways around the ban should be aware of the potential penalties.

The bill says "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 shall…be subject to a civil penalty of not more than $5,000 for the first offense and not more than $25,000 for a second or subsequent offense." But that's not the worst of it.

The bill also says a police officer who "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" may seize both the product and the "receptacle" in which it is found, "including, but not limited to, a motor vehicle, boat or airplane in which the electronic nicotine delivery systems are contained or transported." Such property "shall be turned over to the commissioner [of revenue] and shall be forfeited to the commonwealth." The commissioner may then sell the seized property and "deposit the proceeds in the General Fund."

Dan Alban, a senior attorney at the Institute for Justice who has been fighting forfeiture abuse for years, was astonished by this provision. "This is completely insane and endangers the property rights of anyone in Massachusetts," he says. "Even if you don't have an 'untaxed electronic nicotine delivery system,' are you going to search every passenger in your vehicle? It is as though someone wanted to highlight the indefensibility of forfeiture via reductio ad absurdum. Does 'receptacle' include a house as well?" Alban says the provision's only redeeming feature is that the proceeds from forfeitures would go into the state's general fund, rather than the budgets of the police departments that seize the property.

While both fines and asset forfeiture could be deployed against distributors of newly illicit vaping products, they apply to consumers as well. "A resident of the commonwealth shall be liable for the collection of the excise on all electronic nicotine delivery systems that are in the resident's possession at any time and upon which the excise has not been paid by an electronic nicotine delivery system distributor or electronic nicotine delivery system retailer," the bill says. "There shall be a presumption that the excise on the electronic nicotine delivery system has not been paid and that the resident is liable for such excise if a resident, upon demand, fails to produce or exhibit to the commissioner or the commissioner's authorized representative an invoice or sales receipt by an electronic nicotine delivery system distributor or electronic nicotine delivery system retailer for an electronic nicotine delivery system in the resident's possession."

In other words, a vaper is presumed to be in possession of "an untaxed electronic nicotine delivery system," which makes his car subject to forfeiture, unless he has receipts that prove otherwise. And in the case of newly illegal vaping products purchased out of state or on the black market, he will have no such proof.

Under this bill, unapproved vaping products would be treated like illegal drugs, possession of which is enough to justify forfeiture of the vehicles in which they are found. Massachusetts is poised to deprive vapers of the harm-reducing products they used to quit smoking, then steal their cars if they dare to defy that unjust and irrational edict.

"Over the objections of most local lawmakers, Massachusetts voters voted to end marijuana prohibition three years ago," says Gregory Conley, president of the American Vaping Association. "Now it appears that legislators are searching for a new drug war to fight. No adult should have to travel with receipts in their pockets at all times under the threat of having their vehicle seized by police for daring to use a flavored nicotine product. Based on what we know from the disastrous war on marijuana, inevitably it will be poor and marginalized communities that will feel the pain from laws like this. This is what happens when you have legislators who not only don't understand what they are banning but are also insistent upon rushing a bill into law."

NEXT: More on the Judge, the Lawyer, and When the Grandfather Died

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    1. There is a reason why they’re called Massholes.

        1. I always thought NJ was where everything is illegal. I guess its really just the whole region

          1. Ohio and Utah would like to throw their hat into the ring, but I think it’s illegal in those states.

            1. Aren’t caffeinated drinks illegal in Utah? (j/k, but really, Mormons).

          2. Or the whole country.

            Some states are better than others, for sure. But none has rejected the notion that it’s a reasonable thing sometimes for a state government to steal people’s cars because they are carrying certain substances around with them.

        2. It’s real strange living just over the (NH) border from Mass. I try not to venture over there too often, but whenever I do I pretty much always see somebody getting hassled by the cops. I don’t know how they can afford that many cops, but when they’re up to shit like this I guess they pay for themselves.

          1. I grew up in a Boston suburb and back then (30+ years ago), staties would go undercover in NH and take photos of cars with Mass. license plates at fireworks shops, then bust them when they drove back over the border. Guess it will now be vapes that they are after.

      1. Yeah, when compared to normal Cigarettes, E-Cigarettes are very much harmful. Destruction is 10x more when compared to normal ones. 🙁

    2. Only in MA could Charlie Baker have an “R” after his name.

      I hate the term RINO, but in his case, it really applies.

  1. Can you say “blatantly unconstitutional”? I knew you could.

    Timbs v Indiana

    1. Massachusetts isn’t in Indiana, duh.

      /prog logic.

      1. But Ohio is.

        /what 80% of the country thinks

  2. This bill permanently bans “flavored tobacco products,” including menthol cigarettes

    RACIST!

    1. Want a Cool one, bro?

      1. Billy D Williams hardest hit

      2. You selling onesies?!?! Punishment for that is death by choking! Go join Eric Garner in the beyond-the-beyond, says Government Almighty!

        1. Loosies. Onesies is for smoking babies, if u can keep em lit…

    2. Do clove cigarettes count, too? How do they define “flavored tobacco” in the law? If you wanna get technical, menthol cigarettes are “flavored tobacco products” because the tobacco leaf fragments saturated with menthol oil to flavor them, but with clove cigarettes, the tobacco leaf fragments themselves aren’t treated in any way, they’re just coexisting in the cigarette with ground clove buds. Loophole? A million pretentious wannabe bohemian high school students want to know.

  3. Just so everyone’s on board, things like RomneyCare or a national Single Payer Healthcare system will require a significant amount of Civil Asset Forfeiture to properly function.

    1. I love it when a plan comes together

  4. People that fancy themselves “progressives” sure do a LOT of regressive shit…

  5. Man, that’s nuts even for Mass. I wonder how likely this is to actually pass in this form.

    1. 99.999% it will pass in current form. Mass. is a lost cause.

  6. Alban says the provision’s only redeeming feature is that the proceeds from forfeitures would go into the state’s general fund, rather than the budgets of the police departments that seize the property.

    How in the name of all that is holy is that a redeeming feature? This is an unambiguously evil, immoral piece of legislation regardless of which body gets the stolen property. Full stop.

    1. It’s more of a mitigating factor.

    2. The argument is that the perverse incentives are less strong since the cops don’t get the full seizure value. This is true, but I agree that it’s a tiny dollop of whipped cream on top of a huge steaming turd of a bill.

      1. Good analysis, but the analogy would be more of a slightly less turdy turd. Maybe it has chunks of undigested corn in it? I dunno…

        But the state as a whole stealing your car instead of the PD and the prosecutor’s office stealing your car really doesn’t rise to the whipped cream category. Maybe more like your cellmate is gonna let you use syrup.

  7. The war on drugs is a failu… wait, Vape Juice? FLAVORED? Nooot on my watch me bucko…

  8. If you ask me, this law doesn’t go far enough. In NYC, they choke people to death for things like this.

    1. Who really was the victim in that scenario anyway? The guy who was strangled, or the people of New York who were essentially Eric Garner’s victims of Small Tobacco.

      1. Until he gets his job back, the answer is, of course, the poor police officer who strangled Garner.

  9. As they say in New Hampshire, Live Free, or Live in Massachusetts

    Maybe it’s a good thing they are doing this; somebody has to go over the edge and provide the straw[s] the break the proverbial camels back [of outrageous government overreach]; might as well be there. I look forward to peoples cars being taking away from them because a passenger was found with an untaxed vape; by that time there will be a decent Constitutional majority on the Supreme Court.

    1. Straws are illegal, you Earth hating monster.

  10. Is it a coincidence that so called progressives (socialists) are turning into the bible banging conservatives of 30-40 years ago or more?
    – want to ban certain speech
    – want to be the morality police with the vaping bans, soda bans, etc.
    – has meltdowns when people don’t agree 100% with the
    socialist/liberal platform.
    – treats politicians on their side like disciples.
    – and I am sure there are more.

    1. If they remade Elmer Gantry today, it would be centered on global warming.

    2. I’ve thought about this. Proggies today occupy similar positions of power that conservatives did 40 years ago, so they get to write laws that impose their aesthetics on the unwashed masses (no vaping, no smoking, no icky words that might trigger my child, tax sodas but not sparkling water). The conservatives back then were reacting mostly to the liberal hippie types, who now, ironically, are the reactionary ones.

  11. And to think that these people are the descendants of people who once went to war over a tax on tea.

    1. Also the descendants of people who thought unbaptized children went to hell when they died. So kind of a mixed bag.

      1. Also played the reality show “witch one floats”

  12. Brings to mind the old joke back during the beginnings of the War on (Some) Drugs that the Coast Guard, really snowed under by all the new duties and no budget increases, should find a seed on an aircraft carrier and impound it. Hell, one carrier would probably carry over for several years!

    I wonder what kind of Navy ships or Air Force planes ever visit Massachusetts? The USS Constitution is probably worth a pretty penny.

    1. I’m not sure offhand, but I thought there was a naval shipyard in or near Boston? Seems like they’ve gotta go there at least somewhat frequently if so.

      1. Only US Navy asset in Boston is the USS Constitution. Unless you want to count recruiting stations or a Naval Reserve office?

    2. I’d love to see state troopers try to impound an aircraft carrier. I’m sure the Marines aboard will just roll right over.

    3. Westover AFB is in Mass. It’s where the fighters that tried to intercept the airliners hijacked on 9/11 were dispatched from. There also used to be Weymouth Naval Air Station, where they used to teach carrier takeoff and landings, and parked some of the planes from carriers inbound to Norfolk.

  13. Massachusetts, a greedy nanny state. A good place to avoid.

    1. The idiocy is stunning. Yeah flavored ecigs were created to hook kids. Nobody but ignorant nobs believe that narrative. It’s like facts are irrelevant to the nanny state.

      1. I don’t know about you, but at exactly 17 years and 364 days I stopped liking anything with sweet flavors. No Coca Cola. No candy. Cake? Fuck no. /sarc

        It sure seems that is their actual attempt at an argument. Not even really an argument so much as some statement of accepted fact. It’s crazy.

        1. As an adult, I want my ice cream to taste only like ice and cream!

      2. It’s nuts. When I was a kid, no one wanted to smoke any fruity shit. People mostly smoked Camels or Marlboro. A few weirdos smoked menthols. And a lot more teens smoked back then.

        1. We smoked whatever we could steal from Grandma’s purse when she wasn’t looking, mostly Newport 100s.

          1. “Virginia Slim Ultra Light Menthol One Hundred and Twenties in the flip-top box”

      3. The argument is that these products were marketed to teens. And if you look at Juul’s marketing material and social media posts from 2015 (which it has since deleted, but was archived by others), it’s an arguable point.

  14. But let’s be honest here folks, at least they are not murdering them for selling loose cigarettes.

    1. I mean, the bill hasn’t passed yet. Once it hits the streets and the black market takes hold, how long before some kid gets shot because the cops had a “reliable informant” tell them he was selling vape juice?

  15. That marijuana vapes are an exception is completely irrational. If vaping is dangerous it is because inhaling vapor is dangerous, it does not matter what the intoxicant content is. It is entirely due to what is perceived as a tobacco product being beyond the pale of social acceptability while marijuana has become oddly socially cool.

    1. “That marijuana vapes are an exception is completely irrational.”

      No, because marijuana isn’t addictive—or not remotely in the same class as nicotine, anyway.

      1. I thought it was because:

        “No sticks, no stems that you don’t need….
        Alcapolco Gold is …..”

    2. Oh, it’s the same in San Francisco! When I visited, there were angry TV ads calling for a ban on vape flavors. But I could walk into a dispensary and buy THC candy. It’s ridiculous.

  16. Was wondering that since weed is legal there if I make a nicotine vape that tastes like lemon kush is that ok?

  17. Just hang up signs at the Massachusetts border pointing out and saying “GO AWAY”.

  18. No chance this is ever abused. At least they reveal their naked ambition in going after people who aren’t paying their fair share in nicotine tax.

  19. Two things:

    1. I just saw an anti-vaping ad payed for by the Tobacco fund “Truth” people. It was specifically targeted at Juul and used lots of funny anthropomorphic animals to say that vaping (or Juuling as they called it) meant you are a human guinea pig. They had tons of fairly slanderous content, basically saying that Juul wants to get you hooked because they are greedy and evil and there is no reason for anyone to ever buy Juul.

    2. Mass. is evil. The US supreme court should weigh in on this asset forfeiture stuff and rein the states all in pretty hard. A $5,000 fine is already excessive, but saying they can take your car, plane or boat if you have a vape pen in it? Good lord….

    Ok, bonus take:

    3. E-Cigarettes with nicotine and with no nicotine will get you fined and your car taken. But pot? Nope, you’re all good! Just more proof that we slipped into an alternate dream universe sometime back before 2016 and any day now we are going to wake up either next to Suzanne Pleshette or in a hospital recovery room, dazed and confused, but with a great and unbelievable story to tell.

    1. So glad I don’t live in Mass. anymore, although Virginia might not be far behind now that we have a progtard assembly to go with our Governor Coonman, who also mentioned that he would like to ban vapes.

  20. I thought standard operating procedure for people with untaxed smoking products was to choke them to death.

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  22. What a horrific bill for civil liberties. Massachusetts is clearly a state to avoid, even traveling, as you risk having all your property legally stolen by the police for one reason or another.

    WaPo ran an article a few years ago that said the average take in the multi-billion dollar “forfeiture industry” is now $250. It a legal shakedown operation and everyone knows it. States have to be drunk with the cash from it to keep pushing the envelop like this, knowing at some point the public is going to break.

    Let’s hope for more attention from SCOTUS, this stuff will never pass Constitutional muster. It’s been going this long only because it hasn’t made its way up the courts yet in a meaningful way, although its starting to.

  23. Forget the ‘drop gun.’ Cops will be carrying a ‘drop untaxed flavored vape juice.’ Beware minority luxury vehicle owners.

  24. At this point, if it comes between my rights or my kids – you can have my fucking kids. Trump is just barely keeping our head above the shithole this country really is. And, like everyone else, I’m not going to do shit about it. I’m just gonna watch it all burn. Just so I can say I was right.

  25. Ain’t that America.

  26. …may seize both the product and the “receptacle” in which it is found, “including, but not limited to, a motor vehicle, boat or airplane in which the electronic nicotine delivery systems are contained or transported.”

    So when an airline flights from Dallas to Boston lands in Boston, cops will check every carry-on bag, every passenger pocket, and every checked bag and if they find an unlicensed device or vape juice suddenly the commonwealth gets a shiny new Boeing 757. What a time to be a government stooge.

  27. …may seize both the product and the “receptacle” in which it is found, “including, but not limited to, a motor vehicle, boat or airplane in which the electronic nicotine delivery systems are contained or transported.”

    So, I am guessing they could also seize one’s house, if vapes are stored there… hmm. What if it is a rental? Wow. The State of Assachusetts could end up owning every single piece of private property in the State. I mean, how hard is to plant a vape in a forty-story office building?

    1. “Assachusetts could end up owning every single piece of private property”

      It isn’t known as The People’s Republic of Massachusetts for nothing!

  28. On the surface, these seem to be extremely draconian penalties for possession of vapes. But I wonder if this is really a poison pill so that it doesn’t pass. If it does, Mass. is a bigger fascist shithole than I thought possible.

    1. It’s funny that the voters think that they are all about freedom.

  29. I’m all for banning the manufacture and sale of these products under the same legislative authority that got rid of dangerous patent medicines in the first half of the 20th Century, but this law is all kinds of overreach – the fines for possessing these without intent to distribute, should, if any, be under $1,000, more like $250, max. And I am against civil forfeiture in general, I think it violates the 5th Amendment, and in this case it violates the 8th Amendment as well, because taking someone’s car or boat away for possessing a vape product is surely an excessive fine.

    1. If you don’t like it, don’t do it. Millions of people are using this as a stop smoking aid, we don’t need your uninformed opinion telling us this is something dangerous, since smoking is 100% legal and an order of magnitude more dangerous.

      All that to say, “fuck off, slaver.”

  30. One more reason to hate living in this hellhole of a state.

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  32. The stupidity of liberals never ceases to amaze.

  33. who cares about the stupid addicted peasantry

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  35. Governor Charlie Baker (R) is all-in with this ban.

  36. hen in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

    We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
    — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,

    — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed.

    …But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

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