BOSTON — The sale of all flavored vaping and tobacco products, including mint and menthol, would be banned in Massachusetts, and e-cigarettes would be newly taxed, under a bill the House and Senate sent Gov. Charlie Baker early Thursday morning in an last-minute burst of lawmaking activity.
If Baker signs the bill into law, Massachusetts would become the first state in the country to ban menthol cigarettes. Speaking to reporters last month, Baker voiced support for the idea of banning flavored e-cigarettes, but did not directly answer when asked if he considers menthol a flavor.
The ban on flavored vaping products would take place immediately with the signing of the legislation, with the prohibition of other flavored tobacco products, including menthol cigarettes, taking place in June 2020.
The bill gained momentum quickly. The House passed its version last week, and the Senate approved it 32-6 Wednesday night, on the final day of formal legislative business for 2019. Legislators from the two branches then needed just a few hours to resolve differences, taking final votes on the bill shortly before 1 a.m.
The bill imposes a 75 percent excise tax on nicotine vaping products, which Senate President Emerita Harriette Chandler said "makes a difference by pushing it right out of a teenager's pocketbook."
Supporters of the legislation have said both the flavor ban and higher costs from an excise tax are intended to reduce the allure of vaping products for young adults, but the idea of prohibiting flavored products has met pushback from vape shop and convenience store owners who see a threat to their business, as well as from adult e-cigarette users. The group Americans for Tax Reform on Wednesday circulated a list of "Testimonials From Adults Who Need Flavored Vapes to Stay Off Cigarettes."
As they acted on the bill, senators credited the advocacy of children and teenagers. Another driving force was the national outbreak of vaping-related lung disease, which prompted Gov. Charlie Baker to declare a public health emergency and enact a temporary ban of vaping product sales in Massachusetts.
That ban is now set to expire on Dec. 24. House Speaker Robert DeLeo on Wednesday afternoon said he hoped it would be possible to get a bill on Baker's desk by the end of the day and senators during debate expressed an interest in avoiding complications by keeping their bill close to the one that passed the House 127-31.
The final bill includes some differences from the one the House approved, including the removal of language that would allow law enforcement to seize vehicles used to transport untaxed nicotine e-cigarettes. The vaping devices themselves could still be confiscated.
Sen. Jamie Eldridge, who sponsored the Senate amendment to remove the property confiscation language, said it was about "making sure we are not continuing to intrude on people's liberties."
He said he hoped the bill could become law this week.
The Senate began debating the bill around 4 p.m., and the deliberations, punctuated by recesses, stretched past 9 p.m. The bill ultimately passed on a vote that was close to party lines. Minority Leader Bruce Tarr voted in favor, and Sen. Viriato deMacedo, who owns a gas station, voted present. Democratic Sens. Anne Gobi and Michael Brady joined the other four Republicans in voting against the proposal.
Sen. John Keenan, the Senate sponsor of a flavor ban bill on which the legislation was based, said the group of advocates he'd worked with included an eighth grader who wanted to protect his younger brother from the dangers of vaping and an 11-year-old concerned about his older sister who wanted to quit.
"These kids have come to us for help," Keenan said. "How can we say no?"
The ban of menthol cigarettes was one of the most controversial parts of the Senate's bill, with two different amendments seeking to carve out menthol from the prohibition. One failed on an 11-27 vote, and the other was withdrawn.
"In Massachusetts, you now have the ability to smoke pot, but we're going to take the ability to smoke menthol cigarettes away? That's crazy," said Westfield Republican Donald Humason, who filed the rejected amendment.
Public health experts have argued that including menthol is key to the ban's effectiveness. Sen. Keenan argued on the floor that leaving menthol untouched — as the federal government did in 2009 when it outlawed other flavored cigarettes — would effectively hand a victory to tobacco companies.
"History has shown us time and again, recent history in particular, that the industry will go to any lengths to keep menthol alive," said Keenan, a Quincy Democrat.
Asked if the impending expiration of the state's vaping products sales ban increased the importance of finalizing a bill, Senate President Karen Spilka said the bill "helps to provide a certainty for folks."
"There is a lot of uncertainty surrounding this whole aspect, so this will provide a certainty to consumers, to retailers, to everybody to know what hopefully the law is and can act accordingly," Spilka told reporters after the Senate adjourned around 1 a.m.
House Speaker Robert DeLeo called the bill a "nation-leading step."
"I hope other states will follow our example in combatting this public health crisis with comprehensive legislation amid inaction by the Trump Administration," he said in a statement.
The American Lung Association praised Massachusetts officials for "bold leadership in modernizing its approach to tobacco control" and said Thursday the bill "is expected to be signed by Governor Baker imminently."