Massachusetts Flavored Tobacco Ban: Rules, Penalties, and Compliance

The Massachusetts flavored tobacco ban prohibits the sale of any flavored tobacco product, including menthol cigarettes, flavored cigars, flavored chewing tobacco, and flavored e-cigarettes, at every retailer in the state except licensed smoking bars, which may sell them only for on-site consumption. The prohibition took effect June 1, 2020, and violations carry fines of $1,000, $2,000, and $5,000 for first, second, and third offenses, with the possible loss of a tobacco sales license on top.

What the Ban Covers

The ban lives in Massachusetts General Laws Chapter 270, Section 28, created by the 2019 session law “An Act Modernizing Tobacco Control.” It bars the sale, distribution, or offer for sale of any flavored tobacco product or tobacco product flavor enhancer to any consumer in Massachusetts, whether in stores, online, or through any other channel. It also prohibits marketing or advertising a proposed sale of flavored products, so a retailer cannot promote what it cannot legally sell.¹

A “flavored tobacco product” is any tobacco product containing a constituent that produces a “characterizing flavor,” meaning a distinguishable taste or aroma other than tobacco. The statute lists fruit, chocolate, vanilla, honey, candy, menthol, mint, wintergreen, herbs, and spices as examples. A product does not qualify as flavored just because it discloses certain ingredients; the additive must actually contribute a distinguishable taste or aroma.¹

“Tobacco product” is defined broadly. It covers anything containing or derived from tobacco or nicotine that is intended for human consumption: cigarettes, cigars, chewing tobacco, pipe tobacco, snuff, e-cigarettes, other electronic nicotine delivery systems, and similar vaporization products regardless of nicotine content. Components, parts, and accessories are included. The only carve-out from the definition is FDA-approved cessation products marketed and sold exclusively for that purpose.¹

In practice, that scope is sweeping. Menthol cigarettes, clove cigars, fruit-flavored vape cartridges, mint chewing tobacco, and flavored cigarillos all fall under the prohibition, along with any “tobacco product flavor enhancer” designed or marketed to produce a characterizing flavor when added to a tobacco product.

The Smoking Bar Exception

The single carve-out applies to smoking bars licensed under MGL Chapter 270, Section 22. These establishments may sell flavored tobacco products and flavor enhancers, but only for on-site consumption. Customers cannot buy a flavored product at a smoking bar and take it home.¹

Effective dates differed by product type. Flavored electronic nicotine delivery systems became restricted to on-site smoking bar sales starting December 11, 2019. The broader ban on flavored combustible products, including menthol cigarettes and flavored cigars, followed on June 1, 2020.²

One boundary worth flagging: the statute explicitly permits Massachusetts-based retailers to sell flavored electronic nicotine delivery systems by online, phone, or other means for delivery to consumers located in another state.¹ The ban targets sales to Massachusetts consumers, not the existence of the products within state borders.

Penalties for Violations

A violation of Section 28 triggers the fine schedule in MGL Chapter 270, Section 6: $1,000 for a first offense, $2,000 for a second offense, and $5,000 for a third or subsequent offense.³ Section 28 incorporates those amounts directly.¹

Department of Public Health regulations add another layer. Under 105 CMR 665, a first violation also brings a $1,000 fine along with a correction order, and second violations within 36 months of the first carry escalating consequences.⁴ Retailers also risk losing their tobacco sales license outright. Local boards of health, alongside the FDA, conduct compliance checks.⁵

What Retailers Must Do to Comply

Pulling flavored products off the shelves is only part of compliance. The Department of Public Health has built a documentation, signage, and inspection framework through 105 CMR 665.

Manufacturer Documentation

Before selling any tobacco product, a retail establishment other than a smoking bar must obtain documentation from the manufacturer or the manufacturer’s agent certifying that the product does not meet the definition of a flavored tobacco product or flavor enhancer and that it lacks any characterizing flavor.⁴ The burden is on the retailer to verify inventory rather than assume it is compliant.

For e-cigarettes and other electronic nicotine delivery systems sold outside of adult-only tobacco stores or smoking bars, retailers must also obtain documentation showing nicotine content in milligrams per milliliter. Products above 35 milligrams per milliliter cannot be sold outside retail tobacco stores or smoking bars.⁴

Required Signage

Every retail establishment that sells tobacco products must post signs developed by the Department of Public Health. These include:

A copy of MGL Chapter 270, Sections 6 and 6A.
A statement that selling tobacco products, including e-cigarettes, to anyone under 21 is prohibited.
Warnings about the health risks of electronic nicotine delivery systems.
For all establishments except smoking bars, a notice that the sale of flavored tobacco products is prohibited.
Referral information for smoking cessation programs.

The signs must be posted conspicuously. The Department provides downloadable templates in English, Spanish, Portuguese, Simplified Chinese, Vietnamese, and Haitian Creole.⁴⁶

Unannounced Inspections

Operating a tobacco retail establishment is conditioned on the retailer’s consent to unannounced, periodic inspections of the premises and products to verify compliance with 105 CMR 665 and any applicable local regulations.⁴ Refusing an inspection is itself a compliance failure.

Current Legal Status

The ban has faced challenges from the tobacco industry arguing that federal law preempts state regulation. Massachusetts has defended the ban as a valid exercise of its authority to regulate the sale and distribution of tobacco products within its borders. The flavored tobacco prohibition is a sales regulation rather than an advertising restriction, and the Department of Public Health has explicit statutory authority to promulgate rules implementing it.¹ The ban remains in effect and enforceable.

1
Mass.gov. Massachusetts General Laws c270 – Section 28
2
Mass.gov. TIR 20-6: Tax and Licensing Provisions in An Act Modernizing Tobacco Control
3
Mass.gov. Massachusetts General Laws c270 – Section 6
4
Mass.gov. 105 CMR 665.000 – Minimum Standards for Retail Sale of Tobacco and Electronic Nicotine Delivery
5
Mass.gov. Information About State, Local, and Federal Tobacco and Nicotine Laws
6
Mass.gov. Signs Required in Massachusetts Tobacco Retail Establishments