Who Will Be the First Person To Go to Prison for Selling Flavored Tobacco or E-Cigarettes?

It’s likely to happen any day now.

Sometime in the not-too-distant future, if it hasn't happened already, the first American will likely be sentenced to prison for selling flavored tobacco or e-cigarettes. 

It might happen in Massachusetts, where state attorney general Maura Healey announced charges last year against New Hampshire resident Samuel Habib, accused of running "a large-scale illegal marijuana, tobacco, and flavored vaping product distribution operation." The charge of tax evasion, stemming in part from his sale of flavored e-cigarettes that are banned in Massachusetts, carries a sentence of up to five years in prison.

Or it might happen in New York. In February in the town of Auburn, the Finger Lakes Drug Task Force and the Auburn Police Department coordinated a raid on a local smoke shop owned by Mohamed Algamal. Police chief James Slayton said that more than 18,000 illegal items were taken from the shop, including 13,500 untaxed cigarettes and 4,000 flavored nicotine vapor cartridges. While an arrest has not yet been made, Slayton has told the press that charges are pending.

Or maybe it will happen in New Jersey or Rhode Island, which have banned flavored e-cigarettes statewide. Or maybe it will be in one of the many cities that have passed flavor bans, such as Chicago, or in San Francisco, which has entirely banned the sale of e-cigarettes not authorized by the Food and Drug Administration. Maybe it will be in a jurisdiction that has banned the sale of menthol cigarettes, such as Washington, D.C., or result from a federal prosecution if the Food and Drug Administration (FDA) moves forward with plans to prohibit them nationwide. 

Regardless of where it happens first, it now seems inevitable that the intersection of American tobacco regulation, tax law, and criminal justice will lead to the arrest, prosecution, and imprisonment of individuals selling nicotine vaping devices or conventional cigarettes in flavors authorities have deemed illegal.

Of course, that's not how advocates of flavor bans portray them as working. They describe them as mere product regulations and are quick to distance them from police enforcement. When D.C. passed its menthol ban, for example, the city council stipulated that enforcement authority would lie exclusively with the Department of Consumer and Regulatory Affairs. Similarly, Mitch Zeller, outgoing director of the FDA's Center for Tobacco Products, recently wrote that agency enforcement of a ban on menthol cigarettes or flavored cigars "would only address manufacturers, distributors, wholesalers, importers and retailers. The FDA cannot and will not enforce against individual consumer possession or use of menthol cigarettes or any other tobacco product."

Statements like this are intended to assuage fears that prohibitions will lead to police encounters and criminal enforcement, especially directed against racial minorities. And while it's technically true that flavor bans generally do not in themselves entail criminal penalties, this oversimplifies their legal impact. Forcing banned products onto illicit markets brings other laws into play. As the American Civil Liberties Union, National Association of Criminal Defense Lawyers, and other groups warned in 2021, this will 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."

The experience of Massachusetts, which banned all forms of flavored tobacco statewide beginning in June 2020, has proven that these concerns are valid. A report from the state's Multi-Agency Illegal Tobacco Taskforce released on March 1 reveals that in 2021, state police and the Department of Revenue seized more than 5,000 packs of cigarettes and more than 100,000 vapor products. It also details multiple investigations and prosecutions, including ones leading to sentences of six months to a year. Some of these were for smuggling that predate the flavor ban, but others clearly involve it. For example, the report notes an ongoing investigation into a February 2022 seizure of more than 5,000 flavored e-cigarettes, as well as a motor vehicle stop that netted "a large quantity of untaxed flavored ENDS [electronic nicotine delivery system] products, cigars, smokeless tobacco, and cigarettes" representing $21,000 in unpaid taxes.

The flavor ban increases incentives for illicit cross-border trade. Ulrik Boesen of the Tax Foundation calculates that cigarette tax stamp sales in Massachusetts declined by 24 percent in the year following implementation of the flavor ban. At the same time, sales in neighboring New Hampshire and Rhode Island increased by 22 and 18 percent, respectively. The clear implication is that rather than eliminating tobacco sales, the ban largely shifted them to other states.

Regardless of whether they are moving banned products or simply evading higher taxes, large-scale tobacco smugglers do not elicit much public sympathy. But the experience in Massachusetts demonstrates that police enforcement against flavored tobacco isn't limited to big operations. In January, police in New Bedford, Massachusetts, staked out a small Latin American clothing store called Botas Vaqueras. They observed a customer leaving with forbidden Newport menthols, entered the store, and seized a small amount of beer, liquor, and cigarettes. The owner, Thomas Xirum, has been charged with "maintaining a nuisance business and illegal sale of flavored tobacco."

The hope among tobacco control advocates is that a federal ban will obviate the need for such prosecutions by cutting off menthol cigarettes at the source. "In essence, where the black market starts is in Kentucky, Tennessee, North Carolina, and Virginia. That's where the manufacturers are," Phillip Gardiner, a public health researcher, explained to Slate last year. "So how do they get from the manufacturer who has been told you can't do this anymore to the underground market? You better look at the manufacturers."

That's the optimistic scenario. In practice, this likely underestimates the resilience of illicit markets, which may persist in spite of a nationwide ban. Bhutan, for example, recently rescinded its much-lauded prohibition of cigarettes during the COVID-19 pandemic, acknowledging that it had created substantial cross-border smuggling. In Australia, which banned the importation of nicotine e-cigarettes last year, the products are sold illicitly by Uber drivers and on TikTok. Finland has struggled to enforce its ban on snus, an oral tobacco product, with seizures increasing from 30 kilos in 2011 to more than 9,000 kilos in 2021. And in the United States, a federal ban on new e-cigarettes has not stopped a flood of black market imports. A federal menthol ban may have a similar effect, encouraging smuggling from overseas or incentivizing dealers to simply apply menthol flavoring on their own.

Debates over tobacco flavor bans typically focus on their public health effects, sweeping aside concerns about how they will be enforced as unrealistic. In the case of menthol cigarettes, there is at least a plausible case that the health benefits of removing them from the market would be significant.

But whatever the public health merits of prohibition, we should question whether stopping adults from purchasing flavored tobacco or e-cigarettes is worth putting the people who sell them illegally in prison, and whether the cause of justice is served by police staking out small businesses for petty amounts of contraband. Advocates of prohibition always claim good intentions. Unfortunately, that is no guarantee of successful implementation or just enforcement.