On November 27, Massachusetts Governor Charlie Baker signed An Act Modernizing Tobacco Control into law. The new law restricts the sale of e-cigarettes and nicotine vaping products as well as flavored tobacco products.

Specifically, the law immediately restricts all flavored nicotine vaping products to licensed smoking bars where they may only be consumed on-site. Additionally, the law restricts the sale of all vaping products with a nicotine content over 35 milligrams per milliliter to licensed, adult-only retail tobacco stores and smoking bars. Finally, beginning June 1, 2020, the sale of all other tobacco products that have a “characterizing flavor” will also be restricted to licensed smoking bars. This restriction includes menthol and mint products such as menthol cigarettes. Regardless of any provision of the law, please note that, until December 11, 2019, Massachusetts’ emergency ban on the sale of all vaping products remains effective.

The law uses broad language, defining a “characterizing flavor” as any “distinguishable taste or aroma, other than the taste or aroma of tobacco, imparted or detectable either prior to or during the consumption of a tobacco product.” “Tobacco products” are all products “containing, made or derived from tobacco or nicotine that [are] intended for human consumption” and include electronic nicotine delivery systems, defined as electronic devices “that can be used to deliver nicotine or another substance to a person inhaling from the device.”

While Massachusetts is the first state to pass a law restricting the sale flavored e-cigarettes and tobacco products, similar legislation is pending in many other states. Like the Massachusetts law, other states’ proposed legislation use broad language that will affect not only e-cigarettes, but also other tobacco products and may even reach beyond their intended scope. Accordingly, those involved in the manufacture, distribution, or sale of e-cigarettes and tobacco products should stay apprised of legislative developments in all states where they conduct business.