Bill Passed by Massachusetts House Would Allow Police to Seize Cars from Vapers who Possess DIY or Black Market E-Liquids

But You Can Drive With Marijuana or Cartons of Marlboros in Your Car To Your Heart's Content

Jacob Sullum, a senior editor at Reason, has revealed a striking set of provisions in the bill (H4183) passed by the Massachusetts House of Representatives on Wednesday. These provisions would allow the police to seize your vehicle if you possess any DIY or black market e-liquids in your car.

The relevant provision in the bill reads as follows:

"When the commissioner or a police officer discovers an untaxed electronic nicotine delivery system in the possession of a person who is not a licensed or commissioner-authorized electronic nicotine delivery system distributor, the commissioner or police officer may seize and take possession of the electronic nicotine delivery systems and any vending machine or other receptacle including, but not limited to, a motor vehicle, boat or airplane in which the electronic nicotine delivery systems are contained or transported."

Because a DIY e-liquid or a black market e-liquid would meet the definition of an "untaxed electronic nicotine delivery system," possessing either in your car would make your vehicle subject to seizure. 

Moreover, if you merely possess a DIY or black market e-liquid (in any location), you are subject to a potential $5,000 fine for the first offense and up to $25,000 for subsequent offenses.

Youth are also subject to the penalties in H4183. So if a youth were caught possessing a black market CBD, THC, or nicotine cartridge, they would be subject to a $5,000 fine; $25,000 if they are caught twice.
 
Even worse, the bill essentially requires you to have a receipt for your e-cigarette or e-liquid purchase to prove that you paid the excise tax. The bill contains a provision that presumes your e-cigarette was not taxed unless you can prove it. So even if you possess a legal e-cigarette (meaning one you purchased from a licensed smoking bar), if you don't have the receipt that e-cigarette could cost you an extra $5,000 above its purchase price. If you're caught twice possessing a JUUL pod without a receipt, that pod four-pack will cost you $25,019.99.

The Rest of the Story

Today, I reveal that if this law is enacted, it will be illegal for any person in Massachusetts to possess any electronic cigarette, vaping device, e-liquid, e-cigarette battery, cartridges, or even e-liquid vials that you obtained prior to the effective date of the law. In other words, you have to discard every single e-cigarette device, component, or e-liquid that you possess on the day the law goes into effect. Otherwise, you are subject to a fine of up to $5,000 for the first offense and up to $25,000 for subsequent offenses.

The relevant provision in HB4183 reads as follows:
  "A person who knowingly purchases or possesses an electronic nicotine delivery system not manufactured, purchased or imported by a licensed electronic nicotine delivery system distributor or licensed electronic nicotine delivery system retailer shall, in addition to any other penalties provided by this chapter or chapter 62C, be subject to a civil penalty of not more than $5,000 for the first offense and not more than $25,000 for a second or subsequent offense."

So for example, suppose you bought a JUUL device at Walgreen's in 2018. Walgreen's was not a licensed electronic nicotine delivery system retailer at the time you made the purchase. You could therefore be considered to be in a possession of an e-cigarette that was not obtained from a licensed dealer. What you thought was a cheap $14.99 expenditure may actually be an expenditure of $5,014.99.

What is so striking about this legislation is how severely it treats e-cigarettes, while treating much more hazardous Marlboro cigarettes leniently. In fact, this bill has absolutely no implications for the sale, purchase, or possession of the product responsible for the most preventable deaths in Massachusetts. But it levies a potential $25,000 fine and forfeiture of your car if you are caught twice with a DIY e-cigarette device or liquid in your vehicle.

I just don't understand the extent of this hysteria around e-cigarettes. There is no doubt that youth addiction to e-cigarettes, which essentially translates into youth use of JUUL, is a major problem. But you don't have to shut down the entire e-cigarette market, criminalize people who are trying to save their lives, create a new black market, and push youth towards THC vaping in order to solve this problem. You can do it with one simple law: limit the nicotine level in e-cigarettes.

In the UK, there isn't a problem with youth addiction to JUUL. But in the UK, JUUL does not contain 54 mg/mL of nicotine. It contains only 17 mg/mL because there is a legal nicotine limit. In fact, H4183 contains a provision that limits e-liquid nicotine levels to 20 mg/mL, except those sold at smoking bars. If the legislature merely enacted that one provision, but including all e-cigarettes (not just those sold at smoking bars), it could significantly curtail the youth vaping epidemic without all of the severe negative health consequences.