Who Will Be the First Person To Go to Prison for Selling Flavored Tobacco or E-Cigarettes?

Sometime in the not-too-distant future, if it hasn’t happened already, the first American will likely be sentenced to prison for selling flavored tobacco or e-cigarettes. 

It might happen in Massachusetts, where state attorney general Maura Healey announced charges last year against New Hampshire resident Samuel Habib, accused of running “a large-scale illegal marijuana, tobacco, and flavored vaping product distribution operation.” The charge of tax evasion, stemming in part from his sale of flavored e-cigarettes that are banned in Massachusetts, carries a sentence of up to five years in prison.

Or it might happen in New York. In February in the town of Auburn, the Finger Lakes Drug Task Force and the Auburn Police Department coordinated a raid on a local smoke shop owned by Mohamed Algamal. Police chief James Slayton said that more than 18,000 illegal items were taken from the shop, including 13,500 untaxed cigarettes and 4,000 flavored nicotine vapor cartridges. While an arrest has not yet been made, Slayton has told the press that charges are pending.

Or maybe it will happen in New Jersey or Rhode Island, which have banned flavored e-cigarettes statewide. Or maybe it will be in one of the many cities that have passed flavor bans, such as Chicago, or in San Francisco, which has entirely banned the sale of e-cigarettes not authorized by the Food and Drug Administration. Maybe it will be in a jurisdiction that has banned the sale of menthol cigarettes, such as Washington, D.C., or result from a federal prosecution if the Food and Drug Administration (FDA) moves forward with plans to prohibit them nationwide. 

Regardless of where it happens first, it now seems inevitable that the intersection of American tobacco regulation, tax law, and criminal justice will lead to the arrest, prosecution, and imprisonment of individuals selling nicotine vaping devices or conventional cigarettes in flavors authorities have deemed illegal.

Of course, that’s not how advocates of flavor bans portray them as working. They describe them as mere product regulations and are quick to distance them from police enforcement. When D.C. passed its menthol ban, for example, the city council stipulated that enforcement authority would lie exclusively with the Department of Consumer and Regulatory Affairs. Similarly, Mitch Zeller, outgoing director of the FDA’s Center for Tobacco Products, recently wrote that agency enforcement of a ban on menthol cigarettes or flavored cigars “would only address manufacturers, distributors, wholesalers, importers and retailers. The FDA cannot and will not enforce against individual consumer possession or use of menthol cigarettes or any other tobacco product.”

Statements like this are intended to assuage fears that prohibitions will lead to police encounters and criminal enforcement, especially directed against r