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.

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."