HomeMy WebLinkAbout2018-10-25 Board of Health Agenda Packet (2) E
Town of North Andover
Board of Health
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REGULATING THE SALE and USE OF TOBACCO&NICOTINE DELIVERY PRODUCTS
SECTION 1 PURPOSE
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It is the intention of the North Andover Board of Health to regulate the sale of tobacco products and ,
nicotine delivery products,primarily to reduce youth and underage access to nicotine and nicotine
delivery products and to advance public health.
SECTION 2 DEI+INITIONS
For the purpose of this regulation,the following words shall have the following meanings:
2.1 BLUNT WRAP: Any tobacco product manufactured or packaged as a wrap or as a hollow
tube made wholly or in part from tobacco that is designed or intended to be filled by the consumer with
loose tobacco or other fillers.
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2.2 BUSINESS AGENT: An individual who has been designated by the owner or operator of
any establishment to be the manager or otherwise in charge of said establishment,
2.3 CIGAR: Any roll of tobacco that is wrapped in leaf tobacco or in any substance containing
tobacco with or without a tip or mouthpiece not otherwise defined as a cigarette under Massachusetts
General Law, Chapter 64C, Section 1,Paragraph 1.
2.4 CHARACTERIZING Ft AVOR: A distinguishable taste or aroma, other than the
taste or aroma of tobacco,menthol,mint or wintergreen,imparted or detectable either prior to or
during consumption of a tobacco or nicotine delivery product or component part thereof,
including,but not limited to,tastes or aromas relating to any fruit, chocolate,vanilla,honey,
candy,cocoa, dessert,alcoholic beverage,herb or spice;provided,however, that no tobacco
product or nicotine delivery product shall be determined to have a characterizing flavor solely
because of the use of additives or flavorings that do not contribute to the distinguishable taste or
aroma of the product or the provision of ingredient information.
2.5 COMPONENT PART: Any element of a tobacco or nicotine delivery product,
including, but not limited to,the tobacco,filter,paper,mouthpiece,heating element battery
and/or electronic circuits but not including any constituent,
2.6 CONSTITUENT: Any ingredient, substance, chemical or compound, other than
tobacco,water added to a tobacco product or reconstituted tobacco sheet,that is added by the
manufacturer to a tobacco or nicotine delivery product during the processing,manufacturing or
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packaging of the tobacco or nicotine delivery product, Such term shall include a smoke
constituent from a tobacco product and a vapor or aerolization constituent from a nicotine
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delivery product.
2.7 DISTINGUISHABLE: Perceivable by either the sense of smell or taste.
2.8 E-CIGARETTE: Any electronic nicotine delivery product composed of a mouthpiece,
licating element,battery and/or electronic circuits that provides a vapor of liquid nicotine to the user, or
relies on vaporization of solid nicotine or any liquid.This term shall include such devices whether they
are manufactured as e-cigarettes, c-cigars,c-pipes or under any other product name.
2.9 EDUCATIONAL INSTITUTION: Any public or private college, school,professional
school, scientific or technical institution, university or other institution furnishing a program of higher
education.
2.10 EMPLOYEE: Any individual who performs services for an employer.
2.11 EMPLOYER: Any individual,partnership,association, corporation,trust or other organized
group of individuals, including North Andover or any agency thereof,which uses the services of one(1)
or more employees,
2.12 ENCLOSED: A space bounded by walls,with or without windows or fenestrations,
continuous from floor to ceiling and enclosed by one(1)or more doors,including but not limited to an
office,function room or halfway.
2.13 FLAVORED TOBACCO PRODUCT: Any tobacco product or component part-thereof that
contains a constituent that has or produces a characterizing flavor. A public statement, claim or indicia
made or disseminated by the manufacturer of a tobacco product, or by any person authorized or permitted
by the manufacturer to make or disseminate public statements concerning such tobacco product,that such
tobacco product has or produces a characterizing flavor shall constitute presumptive evidence that the
tobacco product is a flavored tobacco product.
2.14 FLAVORED NICOTINE DELI VERY PRODUCT: Any nicotine delivery product,as
defined herein,including e-cigarettes, as defined herein, or component part thereof that contains a
constituent that has or produces a characterizing flavor. A public statement,claim or indicia made or
disseminated by the manufacturer of a nicotine delivery product, including e-cigarettes as defined herein,
or by any person authorized or permitted by the manufacturer to make or disseminate public statements
concerning such product,that the product has or produces a characterizing flavor shall constitute
presumptive evidence that the product is a flavored nicotine delivery product,including e-cigarettes as
defined herein,
2.15 HEALTH CARE INSTITUTION: An individual,partnership,association,corporation or
trust or any person or group of persons that provides health care services and employs health care
providers licensed,or subject to licensing,by the Massachusetts Department of Public Health under
M.G.L. c. 112 or a retail establishment that provides pharmaceutical goods and services and subject to the
provisions of 247 CNM 6.00,Health care institution includes,but is not limited to,hospitals,clinics,
health centers,pharmacies,drug stores, doctor offices and dentist offices,
2.16 NICOTINE DELIVERY PRODUCT: Any manufactured article or product made wholly or
in part of a tobacco substitute or containing nicotine that is expected or intended for human consumption,
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but not including a product approved by the United States Food and Drug Administration for sale as a
tobacco use cessation or harm reduction product or for other medical purposes and which is being
marketed and sold solely for that approved purpose.Nicotine delivery product includes, but is not limited
to, e-cigarettes.
2.17 NON-RESIDENTIAL ROLL-YOTJR-OMW(RYO)MACIIM,:A mechanical device
made available for use(including to an individual who produces cigars, cigarettes, smokeless
tobacco,pipe tobacco, or roll-your-own tobacco solely for the individual's own personal
consumption or use)that is capable of making cigarettes, cigars or other tobacco products. RY0
machines located in private homes used for solely personal consumption are not Non-Residential
RYO machines.
2.18 OUTDOOR SPACE: An outdoor area, open to the air at all times and cannot be enclosed
by a wall or side covering,
2.19 PERMIT HOLDER: Any person engaged in the sale or distribution of tobacco or nicotine
delivery products directly to consumers who applies for and receives a tobacco and nicotine delivery
product sales permit or any person who is required to apply for a tobacco and nicotine delivery product
sales permit pursuant to these regulations,or his or her business agent.
2.20 PERSON: An individual,employer, employee,retail store manager or owner,or the owner
or operator of any establishment engaged in the sale or distribution of tobacco or nicotine delivery
products directly to consumers.
2.21 RETAIL TOBACCO STORE: An establishment which is not required to possess a
retail food permit whose primary purpose is to sell or offer for sale to consumers,but not for resale,
tobacco products and paraphernalia,in which the sale of other products is merely incidental, and in
which the entry of persons under the age of 21 is prohibited at all times,and maintains a valid
permit for the retail sale of tobacco products as required to be issued by the North Andover Board of
Health.
2.22 SELF SERVICE DISPLAY: Any display from which customers may select a tobacco
product or a nicotine delivery product without assistance from an employee or store personnel,
excluding vending machines,
2.23 SMO1,aNG(or smoke): The lighting of a cigar,cigarette,pipe or other tobacco
product or possessing a lighted cigar,cigarette,pipe or other tobacco or non-tobacco product
designed to be combusted and inhaled.
2.24 SMOKING BAR: An establishment that primarily is engaged in the retail sale of
tobacco products for consumption by customers on the premises and is required by Mass. General
Law Ch. 270, Section 22 to maintain a valid permit to operate a smoking bar issued by the
Massachusetts Department of Revenue. "Smoking Bar"shall include,but not be limited to,those
establishments that are commonly known as"cigar bars"and"hookah bars".
2.25 TOBACCO PRODUCT: Cigarettes, cigars,chewing tobacco,pipe tobacco,bidis,snuff or
tobacco in any of its forms.
2.26 VENDING MACIINE: Any automated ormeehanical self service device,which upon
insertion of money,tokens or any other form of payment,dispenses or makes cigarettes, any other
tobacco product or Nicotine Delivery Product,
SECTION 3 TOBACCO AND NICOTINE DELIVERY PRODUCT SALES TO PERSONS
UNDER THE, AGE OF 21 PROHIBITED
3.1 No person shall sell or otherwise distribute tobacco or nicotine delivery products to persons under
the age of 21.
3.2 REQUIRED SIGNAGE
In conformance with and in addition to Massachusetts General Law,Chapter 270,Section
7,a copy of Massachusetts General Laws,Chapter 270,Section 6,shall be posted
conspicuously by the owner or other person in charge thereof in the shop or other place
used to sell tobacco products at retail. The notice shall be made available from the North
Andover Board of Health. The notice shall be at least 48 square inches and shall be
posted conspicuously by the permit holder in the retail establishment or other place in
such a manner so that it may be readily seen by a person standing at or approaching the
cash register. The notice shall directly face the purchaser and shall not be obstructed
from view or placed at a height of less than four(4),feet or greater than nine(9)feet from
the floor.The notice shall also disclose current referral information about smoking
cessation, as well as notice that the sale of tobacco products,nicotine delivery products
including e-cigarettes to someone under the age of 21 is prohibited, and that the use of e-
cigarettes is prohibited where smoking is prohibited in the Town of North Andover.
3.3 IDENTIFICATION: Each person selling or distributing tobacco products or nicotine
delivery products shall verify the age of the purchaser by means of a valid government-
issued photographic identification containing the bearer's date of birth that the purchaser
is 21 years old or older. Verification is required for any person who appears to be tinder
the age of 27.
3.4 All retail sales of tobacco or nicotine delivery products must be face-to-face between the
seller and the buyer(except for the purchase of tobacco from vending machines)and all
retail sales of tobacco or nicotine delivery products must occur at a location with a valid
tobacco and nicotine delivery product sales permit.
SECTION 4 TOBACCO AND NICOTINE DELIVERY PRODUCT SALES PERMIT
4.1 No person shall sell or otherwise distribute tobacco or nicotine delivery products at retail within
North Andover without first obtaining a Tobacco and Nicotine Delivery Product Sales Permit issued
annually by the North Andover Board of Health. Only owners of establishments with a permanent,non-
mobile location in North Andover are eligible to apply for a permit and sell tobacco products or nicotine
delivery products at the specified location in North Andover.
4.2 As part of the Tobacco and Nicotine Delivery Product Sales Permit application process,the
applicant will be provided with the North Andover Board of Health regulation. Each applicant is required
to sign a statement declaring that the applicant has read said regulation and that the applicant is
responsible for instructing any and all employees who will be responsible for tobacco and nicotine
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delivery product sales regarding federal,state and local laws regarding the sale of tobacco and this
regulation.
4.3 Each applicant who sells tobacco is required to provide proof of it cut-rent tobacco sales license
issued by the Massachusetts Department of Revenue before a Tobacco and Nicotine Delivery Product
Sales Permit can be issued.
4.4 The fee for a Tobacco and Nicotine Delivery Product Sales Permit shall be in accordance with the
most current Board of Health fee schedule. All such permits shall be renewed annually by June 30"'of
every year.
4.5 A separate permit is required for each location where a retail establishment is selling tobacco or
nicotine delivery products.
4.6 Each Tobacco and Nicotine Delivery Product Sales Permit shall be displayed at the retail
establishment in a conspicuous place.
4.7 No Tobacco and Nicotine Delivery Product Sales Permit holder shall allow any employee to sell
tobacco products or nicotine delivery products until such employee reads this regulation and federal and
state laws regarding the sale of tobacco and signs a statement,a copy of which will be placed on file in
the office of the employer,that he/she has read the regulation and applicable state and federal laws.
4.8 A Tobacco and Nicotine Delivery Product Sales Permit is non-transferable
4.9 Issuance of a Tobacco and Nicotine Delivery Product Sales Permit shall be conditioned on an
applicant's consent to unannounced,periodic inspections of his/her retail establishment to ensure
compliance with this regulation.
4.10 Issuance and holding of a Tobacco and Nicotine Delivery Product Sales Permit shall be
conditioned on an applicant's on-going compliance with current Massachusetts Department of Revenue
requirements and policies including,but not limited to,minimum retail prices of tobacco products. t
4.11.A`I obacco and Nicotine Delivery Product Sales Permit will not be renewed if the permit holder
has failed to pay all fines issued and the time period to appeal the tines has expired and/or has not
satisfied any outstanding permit suspensions.
SECTION 5 CIGAR SALES REGULATED:
5.1 No retailer,retail establishment,or other individual or entity shall sell or distribute or cause to be
sold or distributed a cigar unless the cigar is contained in an original package of at least four(4)cigars. A
package of four or more cigars must be priced at the retail market price or at five($5.00)dollars,
whichever price is higher.
5.2 This Section shall not apply to:
(a) The sale or distribution of any cigar having a retail price of two dollars
and fifty cents($2.50)or more.
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(b) A person or entity engaged in the business of selling or distributing cigars for commercial
purposes to another person or entity engaged in the business of selling or distributing cigars
for commercial purposes with the intent to sell or distribute outside the boundaries of North
Andover.
5.3 The North Andover Board of Health may adjust from time to time the amounts specified in this
Section to reflect changes in the applicable Consumer Price Index by amendment of this regulation,
SECTION T11E SALE OF]FLAVORED TOBACCO PRODUCTS AND FLAVORED
NICOTINE DELIVERY PRODUCTS PROHIBITED
No person shall sell or distribute or cause to be sold or distributed any flavored tobacco products or
flavored nicotine delivery product except in smoking bars and retail tobacco stores,
SECTION 7 THE SALE, OF BLUNT WRAPS
No person or entity shall sell or distribute blunt wraps within North Andover,except that retail tobacco
stores are permitted to sell or distribute blunt wraps.
SECTION 8 FREE DISTRIBUTION AND COUPON REDEMPTION
No person shall distribute,or cause to be distributed, any free samples of tobacco products or nicotine
delivery products. No means, instruments or devices that allow for the redemption of tobacco products or
nicotine delivery products for free or cigarettes at a reduced price below the minimum retail price
determined by the Massachusetts Department of Revenue shall be accepted by any permit holder.
SECTION 9 OUT-OF-PACKAGE SALES
The sale or distribution of tobacco products or nicotine delivery products as defined herein in any form
other than an original factory-wrapped package is prohibited. No person may sell or cause to be sold or
distribute or cause to be distributed, any cigarette package that contains fewer than twenty(20) cigarettes,
including single cigarettes.
SECTION 10 SELF SERVICE DISPLAYS
10.1 All self-service displays of tobacco products and/or nicotine delivery products are
prohibited, All humidors including, but not limited to,walk-in humidors must be locked.
10.1(a) EXEMPTION: Sell-service displays that are located in facilities where the retailer ensures
that no person younger than twenty-one(2 1)years of age is present, or permitted to enter,at any time.
SECTION 11 TOBACCO VENDING MACHINES
11.1 All tobacco and/or nicotine delivery product vending machines are prohibited.
11.1(a) EXEMPTION: Vending machines are permitted if equipped with a lock out device, in an
establishment with a valid pouring liquor license, and located in facilities where the retailer ensures that
no person younger than twenty-one(21)years of age is present,or permitted to enter,at any time, A
lock-out device locks out sales from the vending machine unless a release rnechanisin is triggered by an
employee. The release mechanism must not allow continuous operation of the vending machine and must
be out of the reach of all consumers and in a location accessible only to employees,
SECTION 12 NON-RESIDENTIAL ROLL-YOUR-OWN RYO MACHINES
All Non-Residential Roll-Your-Own(RYO)Machines are prohibited.
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SECTION 13 RESTRICTIONS ON THE SALE OF TOBACCO AND NICOTINE
DELIVERY PRODUCTS AT HEALTH CARE INSTITUTIONS:
The North Andover Board of Health strongly encourages health care institutions that sell tobacco and
nicotine delivery products to store these products in a manner that is hidden from the view of customers
and the general public. The North Andover Board of health reserves the right to enact regulations
eliminating the sale of tobacco and nicotine delivery products at health care institutions if said institutions
are unsuccessful in storing these products in the aforementioned manner,
SECTION 14 PROHIBITION OF THE SALE OF TOBACCO AND NICOTINE DELIVI�"MY
11ItODUCTS BY EDUCATIONAL INSTITUTIONS:
No educational institution located in North Andover shall sell or cause to be sold tobacco or nicotine
delivery products.This includes all educational institutions as well as any retail establishments that
operate on the property of an educational institution.
SECTION 15 VIOLATIONS/El NFORCEMENT/PENALITIES
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15.1 It shall be the responsibility of the permit holder and/or his or her business agent to
ensure compliance with all sections of this regulation pertaining to his or her distribution of tobacco
and/or nicotine delivery products.The violator shall receive:
a) In the case of a first violation,a fine of one hundred(100)dollars;
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b) In the case of a second violation within twenty-four(24)months of the date of the first
violation,a fine of two hundred(200)dollars and the Tobacco and Nicotine Delivery Product
Sales Permit may be suspended for seven(7)consecutive business days.
c) In the case of a third violation within a twenty-four(24)month period, a fine of three hundred
(300)dollars and the Tobacco and Nicotine Delivery Product Sales Permit may be suspended for
thirty(30)consecutive business days.
d) In the case of more than three violations within a twenty-four(24)month period,a fine of
three hundred(300)dollars per additional violation and the''obacco and Nicotine Delivery
Product Sales Permit may be revoked,
15.2 Refusal to cooperate with inspections pursuant to this regulation shall result in the
suspension of the Tobacco and Nicotine Delivery Product Sales Permit for thirty(30)consecutive
business days.
15.3 in addition to the monetary fines set above,any permit holder who engages in the sale or j
distribution of tobacco or nicotine delivery products directly to a consumer while his or her permit is
suspended shall be subject to the suspension of all Board of Health issued permits for thirty(30)
consecutive business days.
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15.4 The North Andover Board of Health shall provide notice of the intent to suspend or revoke a
Tobacco and Nicotine Delivery Product Sales Permit,which notice shall contain the reasons therefore and
establish a time and date for a hearing which date shall be no earlier than seven(7)days after the date of
said notice. The permit holder or its business agent shall have an opportunity to be heard at such hearing
and shall be notified of the Board of Health's decision,and the reasons therefore in writing. After a
hearing,the North Andover Board of Health may suspend or revoke the Tobacco and Nicotine Delivery
Product Sales Permit if the Board finds that a violation of this regulation occurred. For purposes of such
suspensions or revocations,the Board shall make the determination notwithstanding any separate criminal
or non-criminal proceedings brought in court hereunder or under the Massachusetts General Laws for the
same offense. All tobacco products and nicotine delivery products shall be removed from the retail
establishment upon suspension or revocation of the Tobacco and Nicotine Delivery Product Sales Permit,
Failure to remove all tobacco and nicotine delivery products shall constitute a separate violation of this
regulation.
15.5 Non-Criminal Disposition: Whoever violates any provision of this regulation may be penalized
by the non-criminal method of disposition as provided in Massachusetts General Laws,Chapter 40,
Section 2 ID or by filing a criminal complaint at the appropriate venue.
Each day any violation exists shall be deemed to be a separate offense,
15.6 Enforcement: Enforcement of this regulation shall be by the North Andover Board of
Health or its designated agent(s). Any resident who desires to register a complaint pursuant to
the regulation may do so by contacting the North Andover Board of Health or its designated
agent(s), and the Board may investigate.
SECTION 16 OTHER APPLICABLE LAWS
This regulation shall not be interpreted or construed to permit smoking where it is otherwise restricted by
other applicable health,safety and fire codes,regulations or statutes.
SECTION 17 PROHIBITING SMOKING IN WORKPLACES AND PUBIJC PLACES
17.1 The Board of Health adopts the Massachusetts Smoke-Free Workplace Law
(Massachusetts General Law Chapter 270, Sections 21 and 22)by reference and any future revisions as a
local regulation.
17.2 Pursuant to Massachusetts General Laws Chapter 270,Section 22 0)smoking is also
hereby prohibited in the following locations:
a) retail tobacco store, except that smoking will be permitted in this establishment if it is
housed in a freestanding building that is not occupied by any other business,
residence or workplace.
b) smoking bar
c) outdoor spaces of restaurants, bars,taverns and any other outdoor space where food
and/or alcoholic beverages, and/or non-alcoholic beverages are sold to the public and
served to the public,or otherwise consumed or carried by the public.
17.3 The use of c-cigarettes is prohibited wherever smoking is prohibited per Massachusetts
General Laws Chapter 270, Section 22 and Section 4.17.002 of this regulation.
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SECTION 18 THROUGH 21 j
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Reserved for future regulations,amendments, etc.
SECTION 22 SEVERABILITY
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If any provision of these regulations is declared invalid or unenforceable, the other provisions
shall not be affected thereby but shall continue in full force and effect.
SECTION 23
This regulation supersedes the prior regulation titled"Regulations Affecting Smoking in Certain Places
and Youth Access to Tobacco,"as adopted on January 1,2002 and thereafter amended.
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Effective Date:
This regulation was adopted on June 25,2015.
This regulation shall take effect on February 2,2015.
Amendments adopted on June 25,2015 in Sections 2.21,3.1,3.2,3.3, 10.1(a), and 11.1(a)pertaining to
an increase in age from 18 to 21 as the legal minimum legal age for sales of tobacco shall take effect on
September 1,2015.
Thomas A. Trowbridge,M.D.;D.D.S., Chairman Date of Si nature
Noi4.Anclover Board of Health
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Francis P. MacMillan,M.D.,Member Date of Signature
North AndovP.,x Board of Health
111,4
Larry-Filer,RY ., Member � Date of Signature
North Andover Board of Health r
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'`E wiin ease,Member Date of Signature
North dover Board of Health
osep arthy,Menibe
McC Date of Signature
orth Andover Board of Health 1
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