Even before Massachusetts passed the 2020 flavor ban, the state had a problem with tobacco smuggling (which is a crime), as evidenced by the formation of a state-run, multi-agency Illegal Tobacco Task Force in 2015. The flavor ban only worsened the problem. According to the Task Force’s 2023 annual report, smuggling of untaxed flavored products remains the primary challenge for tobacco enforcement in the Commonwealth, with seizures of illicit tobacco products increasing over 300% last year.

Even with numerous successful criminal investigations, the illegal market continues to operate in Massachusetts, effectively shifting millions in tax revenue to the illegal black market, including $120 million from tobacco taxes the first year following the ban. On top of the tax loss is the state’s spending of $1 million for the Task Force budget for enforcement efforts and additional unseen costs.

It remains the responsibility of Massachusetts’ law enforcement agencies to combat the illicit market and enforce the law. But given the significant increase in illicit activity, the Task Force has conceded that it needs more enforcement tools – one of their recommendations is to expand criminal charges to individuals for possession with intent to sell. This issue exposes the tension in prohibition laws: authorities must either commit to do what is necessary to enforce the rule, increasing interaction between police and the community, or turn a blind eye to lawlessness and watch the illicit activity grow unchecked.

[Laissez-faire prohibition never works. It only makes matters more complicated. — Ed]