Massachusetts Menthol Ban: Prohibitions, Penalties, and Exemptions

The Massachusetts menthol ban prohibits the sale of menthol cigarettes and every other flavored tobacco product to consumers in the state. It took effect in two stages under a law Governor Charlie Baker signed in November 2019: flavored e-cigarettes came off shelves immediately, and menthol cigarettes along with all remaining flavored tobacco products followed on June 1, 2020. Massachusetts was the first state to end sales of all flavored tobacco products, and the law still ranks among the broadest in the country.

What the Law Prohibits

Codified at Massachusetts General Laws Chapter 270, Section 28, the statute bars any person, retailer, or manufacturer from selling, distributing, or offering for sale any flavored tobacco product or flavor enhancer to a consumer in the state. It applies to brick-and-mortar stores, online sellers, and every other distribution channel. Advertising a sale that would violate the ban is also illegal.¹

“Tobacco product” is defined broadly. It covers anything containing or derived from tobacco or nicotine intended for human consumption, including cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, snuff, and electronic nicotine delivery systems, along with their components and accessories. The only carve-out is for products the FDA has approved and marketed exclusively as tobacco cessation aids or for other medical purposes.¹

One point often misunderstood: the law targets sellers, not buyers. Penalties apply to the business that sells or distributes flavored tobacco. A consumer who purchases or possesses a flavored tobacco product is not subject to fines under this statute.

How Regulators Decide a Product Is Flavored

The statute defines a “characterizing flavor” as any distinguishable taste or aroma other than tobacco that is detectable before or during consumption. The listed examples include fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, and spice. A product is not considered flavored solely because ingredient information is disclosed or because it contains additives that do not actually produce a distinguishable non-tobacco taste.¹

The Department of Public Health uses several lines of evidence to make that determination. A 2024 DPH guidance letter explained that regulators may consider whether a chemical constituent produces a non-tobacco taste or aroma, consumer reviews describing the flavor, product packaging or labeling, public statements by the manufacturer, scientific articles, and sworn testimony from people familiar with the tobacco industry.²

The multi-factor approach matters because some manufacturers reformulated products to avoid the ban. DPH found that certain cigarettes contained a synthetic cooling agent called WS-3, or vanillin and ethyl vanillin, producing a distinguishable non-tobacco taste. Others contained menthol in the tobacco filler itself. In each case, DPH concluded the products were flavored regardless of how they were branded.²

The Smoking Bar Exemption

The ban has one narrow exemption: licensed smoking bars may sell flavored tobacco products for on-site consumption only.¹ Qualifying is not simple. Under Chapter 270, Section 22, the establishment must meet every one of the following:

Occupy an enclosed indoor space exclusively and be primarily engaged in the retail sale of tobacco products for consumption on the premises.
Derive at least 51 percent of total combined revenue from tobacco, food, and beverages from tobacco sales, demonstrated quarterly.
Keep food and beverage revenue incidental to tobacco sales, and prohibit outside food and drink on the premises.
Bar anyone under 21 from entering.
Hold both a valid local retail tobacco permit and a separate smoking bar permit issued by the Department of Revenue.

Fail any one of these and the exemption disappears.³ This is not a workaround for convenience stores or vape shops. It exists for a small number of dedicated tobacco lounges whose income comes mostly from on-premises tobacco consumption.

Penalties Retailers Face

Fines escalate with each offense. A first violation carries a fine of up to $1,000, a second up to $2,000, and a third or subsequent offense up to $5,000.⁴ These are the same amounts that apply to other tobacco sales violations under Chapter 270, Section 6.

Fines are only part of it. A knowing violation can result in the suspension or revocation of a retailer’s tobacco license, cigar license, or electronic nicotine delivery system license. The consequences cascade: a retailer whose tobacco license is suspended or revoked also faces suspension of any state lottery license for up to 60 days.⁴ For a store that depends on lottery sales, the secondary penalty can hurt more than the fine.

Enforcement is spread across agencies. DPH sets the regulations and can impose civil penalties. Local boards of health inspect retailers, check signage, and verify that prohibited products are off shelves.⁵ The state’s Multi-Agency Illegal Tobacco Task Force reported a 93 percent compliance rate among retailers in FY2023 and issued 428 violations for selling flavored tobacco that year, up from 267 the year before.⁶

Ordering Online or Buying Across State Lines

The statute explicitly covers online sales. It prohibits selling or offering flavored tobacco “in any retail establishment, online or through any other means” to any consumer in the state.¹ Federal law reinforces this. The Prevent All Cigarette Trafficking (PACT) Act requires delivery sellers to comply with all state and local laws as if the sale occurred entirely within the destination state. An out-of-state online retailer shipping flavored tobacco to a Massachusetts address violates federal law by completing that sale.

The PACT Act also imposes its own requirements on delivery sellers of cigarettes, smokeless tobacco, roll-your-own tobacco, and electronic nicotine delivery systems. Sellers must verify the buyer’s age and identity at purchase, use a carrier that checks ID and obtains a signature at delivery, pay all applicable state and local excise taxes, affix required stamps, and retain delivery sale records for four years.

Separately, federal law bans mailing cigarettes, smokeless tobacco, and electronic nicotine delivery systems through the U.S. Postal Service, with narrow exceptions for shipments between verified tobacco businesses, small personal shipments between adults, and government-authorized public health research.⁷ The overlap means that ordering flavored tobacco online for delivery to a Massachusetts address runs into both state and federal barriers.

Cross-border purchasing has been the more persistent workaround. A peer-reviewed study in the American Journal of Public Health examined tobacco sales in New Hampshire, New York, Rhode Island, and Vermont during the year after the ban took effect. Total tobacco sales across the four states fell by 1.8 percent. New Hampshire was the exception: total tobacco sales rose 10.5 percent there, and menthol sales jumped 40.2 percent. When researchers compared that increase against the drop in Massachusetts, the combined menthol sales across both states still declined, and New Hampshire menthol sales began trending downward within months of the initial spike.⁸

Has the Ban Held Up in Court

Yes. The tobacco industry’s main legal argument against state-level flavor bans is that the federal Tobacco Control Act preempts them. That argument has not succeeded. The Tobacco Control Act contains a savings clause at 21 U.S.C. § 387p preserving state authority to enact measures relating to or prohibiting the sale, distribution, possession, access to, advertising of, or use of tobacco products.⁹ The areas federal law does preempt are narrow: product standards, premarket review, adulteration, misbranding, labeling, registration, good manufacturing standards, and modified risk products. Sales restrictions fall outside that list.

In Six Brothers, Inc. v. Town of Brookline, the Massachusetts Supreme Judicial Court held that a local flavored tobacco ordinance was not preempted by state law.¹⁰ While that case tested a municipal ordinance rather than the statewide ban, the reasoning on preemption applies broadly and has discouraged further challenges.

If Your Tobacco License Is Suspended

A retailer whose tobacco license is suspended or revoked has a tight window to act. Under Massachusetts administrative procedure, you must file an appeal with the Alcoholic Beverages Control Commission within five business days of receiving the local licensing authority’s written decision. Miss that deadline and the decision stands.¹¹

The ABCC typically schedules enforcement hearings within 30 days after issuing a notice of violation. Both sides must file a jointly prepared pre-hearing memorandum that includes proposed exhibits and a witness list. Failing to file can result in exhibits being excluded or the appeal being dismissed. If you need more time, a written request for a continuance should go in at least seven days before the hearing, with an explanation of good cause and a statement of whether the other party objects.¹¹

If the ABCC rules against you, you have 30 days to appeal to Superior Court. The hearings follow the Massachusetts Administrative Procedures Act and the Informal Rules of Adjudicatory Practice and Procedure at 801 CMR 1.02. Get counsel involved quickly, because the five-business-day clock starts the moment the written decision arrives.

1
General Court of Massachusetts. Massachusetts General Laws Part IV, Title I, Chapter 270, Section 28
2
Mass.gov. DPH Flavor Guidance Letter 2-2024
3
Mass.gov. Massachusetts General Laws Chapter 270, Section 22
4
General Court of Massachusetts. Session Laws Acts 2019 Chapter 133
5
Mass.gov. Local, State and Federal Laws Related to Tobacco
6
Mass.gov. Task Force FY24 Annual Report
7
Federal Register. Treatment of E-Cigarettes in the Mail
8
American Journal of Public Health. Impact of Massachusetts’ Statewide Sales Restriction on Flavored and Menthol Tobacco Products on Tobacco Sales in Surrounding States
9
Office of the Law Revision Counsel. 21 USC 387p – Preservation of State and Local Authority
10
Justia Law. Six Brothers, Inc. v. Town of Brookline
11
Mass.gov. Prepare for an Appeal or Violation Hearing