HomeMy WebLinkAbout2024-03-28 Board of Health Minutes North Andover Board of Health
Meeting Minutes
Thursday—March 28,2024
7:00 p.m.
120 Main Street, Board of Select Room
Live broadcast can be heard on www.northandovercam.org
Present: Michelle Davis,Dr.Patrick Scanlon,Bral Spight,Brian LaGrasse,and Toni K.Wolfenden
I. CALL TO ORDER
The meeting called to order at 7:00 pm.
II. PLEDGE OF ALLEGIANCE
III. APPROVAL OF MINUTES
A. Meeting Minutes from January 25,2024 presented for signature. Motion made by Dr.Patrick Scanlon
for approval,seconded by Bral Spight,all in favor and the minutes approved.(3-0-0)
IV. COMMUNICATIONS,ANNOUNCEMENTS,AND DISCUSSION
A. Ronald Beauregard—Healthy Communities Tobacco Control
Mr.Ronald Beauregard,Healthy Communities Tobacco Control,is present to discuss state and
municipality tobacco regulation updates. Ron is the Town of North Andover Tobacco Control Officer for
North Andover and for 16 other communities in Massachusetts. Brian LaGrasse and Ron have been
discussing what is going on in the area to reduce the density of tobacco product sales permits. Ron has
been provided several studies by the Massachusetts Department of Public Health-Epidemiology Team.
The studies show a correlation between reduced density and lower tobacco use,a causation has not been
determined. The correlation shows a promising route to lower tobacco use. Andover has an attrition
clause. For fairness,towns and cities are not removing the permit if an establishment is being sold. The
tobacco permit is not transferred however,the buyer has the opportunity to obtain a new tobacco permit
within 30 to 60 days. The business will not be de-valued through loss of a tobacco permit. North Andover
has a total of 16 tobacco permit holders. Andover has the following language in their Tobacco Regulations
— "No permit renewal will be denied based on the requirements othee subsection accept any permit holder
who has failed to renew his/her permit within 30 days of iration will be treated as a first-time
applicant." Applicants who purchase a business that holds a current tobacco product sales permit at the
time o the sale of said business may apply within 60 days o such sale for the permit held by the seller i
the buyer intends to sell tobacco. Massachusetts Association of Health Boards recommends all fines and
suspensions imposed onto the seller must be satisfied prior to the sale. Permits are not owned by the entity,_
it cannot be sold,pledged or otherwise traded. North Andover is capped at 16 permit holders.(See
Appendix A.) If a location closes and the permit is no longer needed,the total cap will go down by that
2024 North Andover Board of Health Meeting
Note: The Board of Health reserve the right to take items out of order and to discuss and/or vote on items that are not listed
on the agenda.
Board of Health Members: Michelle Davis,RN,Chairwoman;Dr.Patrick Scanlon Clerk/Town Physician/Member;Jennifer
Abou-Ezzi RN,Member;Jennifer LeBourdais,RN,Member;Bral Spight,Member. Department Staff:Brian LaGrasse,Health
Director;Shanene Pierce,Public Health Inspector;Carolyn Lam,RN,Public Health Nurse;Toni K.Wolfenden,Health
Department Assistant.
number. Ron believes 20-40 communities have done this. He will provide the documentation at a later
date.
Ron recommends reviewing the current Tobacco Regulations and removing anything that is inconsistent
with state law. Fines would be updated. Massachusetts Tobacco Regulations is one of the most stringent
in the country. Updated regulations will allow for consistency between North Andover and the
Commonwealth of Massachusetts.(See Appendix B.and C.)
There is a provision with the state law in reference to tobacco fees that says that after a hearing the board
shall sustain,modify or withdraw the order. This brings forward two questions,does the Board of Health
have the authority to modify or withdraw fines and should they? The Town of Newbury asked whether or
not the Board of Health has the discretion to change fines or withdraw all together. These questions went
up in front of Massachusetts Association of Health Boards,Massachusetts Health Officers Association,and
the Massachusetts Municipal Association for advice. The decision was made that the only appeal that can
be made if the sale occurred,if this is proven then the imposition of the$1000 fine must occur. Some
modification can be made but not in the fine. Newbury is appealing the decision.
State fines are as follows: first offence-$1000,second offence—within 36 months is$2000 with a 7-day
suspension,third offense—within that 36-month period is$5000 with 30-day suspension.
The Town of Brookline has instilled a nicotine free generation. Article 8.23 Tobacco Control I. Tobacco
Sales Section 2.Identification:Each person selling or distributing tobacco products, as defined herein,
shall veriA the age of the purchaser by means of a valid government-issued photographic identification
containing the bearer's date of birth that the purchaser was born prior to 0110112000. This has been
upheld by the Supreme Judicial Court. Basically,there will be no sales of tobacco to people who are born
in the year 2000 and below no matter their age. Patrick has inquired about grants for nicotine products to
help people with quitting smoking. Ron is unsure but there is a phone number people can call for
assistance 1-800-quit-now. Michelle inquires of the possibility to have tobacco and alcohol collaboration
for identification.(See Appendix D.)
Tobacco Signage—There is a federal law that requires every tobacco sign has to have the surgeon general
warning on the top and that the warning covers at least 20%of the sign. Only one sign at a specific liquor
store in North Andover had it. (See Appendix E.)—pictures are from Fall of 2023. The Board of Health
does not have the jurisdiction to enforce but the board and department can educate on the potential Federal
violation. The FDA does do spot checks. Town ofNorth Andover—Tobacco Regulations: Section 4:
Tobacco Product Sales Permit 4.2 As part of the Tobacco Product Sales Permit application process, the
applicant will be provided with the North Andover Board o 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 product sales
reQardingfederal. state and local laws regarding the sale oftobacco and this regulation.(See Appendix
B.) There is a Federal Labeling and Advertising Act. Ron will look into the federal citations to see if they
apply to other tobacco products such as nicotine pouches,cigars,and vapes. Ron will begin the tobacco
regulation update with a general overview and overhaul. North Andover will update the fines to match the
state,permit holder attrition,and any other appropriate information deemed necessary by the board.
V. OLD BUSINESS
A. Departmental Discussion—Brian LaGrasse
The Automated External Defibrillators(AED)grant update. AEDs have been ordered with weatherproof
boxes. The signage is in the process of being ordered. The structures need to be built,however,the
materials will be in on March 29,2024. The prototype will be assembled after the materials arrive.
Approval for the prototype will be next week. The pedestals will be installed the week of the April 3rd thru
101. The install of the mounted boxes will be April 21 thru the 121. The AEDs will be installed on the
15'h. A press release will be done at the end. A training video will be distributed to all the coaches and
referees of the town sports. If someone needs an AED,they call 911,a code is given to open the box,and
then it can be administered. The AEDs are outdoor weatherproof,shatter proof and meant for this
particular use. Michelle asks if the town has coordinated with Brooks,unfortunately we have not at this
time. Brian believes Brooks has one in the health office and he will contact to see if this is something they
are interested in.
North Andover Board of Health
Meeting Minutes
Thursday—March 28, 2024
7:00 p.m.
120 Main Street,Board of Select Room
Live broadcast can be heard on www.northandovercam.org
VI. ADJOURNMENT
MOTION made by Dr.Patrick Scanlon to adjourn,seconded by Bral Spight,all in favor, MOTION
approved.The meeting adjourned at 8:02 pm.
Prepared by:
Toni K. Wolfenden, Health Dept.Assistant
Reviewed bv:
All Board of Health Members&Brian LaGrasse, Health Director
Si ng ed by:
Dr. Patri Sc on, Clerk of Board Date Signed
Documents Used At Meeting:
Agenda
Tobacco Permit Holder List
Town of North Andover, Board of Health Regulating the Sale and Use of Tobacco Products
Commonwealth of Massachusetts 105 CMR 665.000: Minimum Standards for Retail Sale of Tobacco and
Electronic Nicotine Delivery Systems
Town of Brookline Article 8.23 Tobacco Control
Tobacco Advertisments
2024 North Andover Board of Health Meeting
Note: The Board of Health reserve the right to take items out of order and to discuss and/or vote on items that are not listed
on the agenda.
Board of Health Members: Michelle Davis,RN,Chairwoman;Dr.Patrick Scanlon Clerk/Town Physician/Member;Jennifer
Abou-Ezzi RN,Member;Jennifer LeBourdais,RN,Member;Bral Spight,Member. Department Staff.Brian LaGrasse,Health
Director;Shanene Pierce,Public Health Inspector;Carolyn Lam,RN,Public Health Nurse;Toni K.Wolfenden,Health
Department Assistant.
North Andover Board of Health
Meeting Agenda
Thursday,March 28, 2024
7:00 pm
120 Main Street
Board of Select Room
Live broadcast can be heard on www.northandoverma.gov
I. CALL TO ORDER
II. PLEDGE OF ALLEGIANCE
III. APPROVAL OF MEETING MINUTES
A. January 25,2024
IV. OLD BUSINESS
A. Departmental Discussion
V. COMMUNICATIONS,ANNOUNCEMENTS,AND DISCUSSIONS
A. Ronald Beauregard-Healthy Communities Tobacco Control
2024 North Andover Board of Health Meeting-Meeting Agenda Page 1 of 1
Note: The Board of Health reserves the right to take items out of order and to discuss and/or vote on items that are not listed on
the agenda.
Board of Health Members,Michelle Davis,RN,Chairwoman;Dr.Patrick Scanlon Clerk/Town Physician/Member;Jennifer
Abou-Ezzi,RN,Member;Jennifer LeBourdais,RN,Member;Bral Spight,Member. Department Staff:Brian LaGrasse,Health
Director;Shanene Pierce,Health Inspector;Carolyn Lam,RN,Public Health Nurse;Toni K.Wolfenden,Health Department
Assistant.
401�)e-l-)CLY- A.
Tobacco Holders Ex 06.30.2024
Record # Applicant Name Address Phone Establishment name:
1 75851 Ankit Patel 350 WINTHROP AVE 7329978870 Bradhill liquors Ilc
2 67288 Christopher Buco 535 CHICKERING RD 9782737303 McAloon's Liquors
3 73262 Christopher Buco 535 CHICKERING RD 9782737303 Quic Pic
4 73263 Mian Ashiq 1503 OSGOOD ST 508-216-4283 786 Shell Inc.
5 67295 Samuel Ameen 12 MASS AVE 9786892719 Sama€T"S Mobil
6 48839 Michael Xenakis 701 SALEM ST 508-246-6798 J&M Convenience Store
7 48837 Michael Xenakis 220 MIDDLESEX ST 508-246-6798 Mikes Market
8 49398 Jignashu Patel 75 CHICKERING RD 5087894089 Richdale Convenience Store
9 66326 Liquor Junction 1280 OSGOOD ST 978-394-6218 Liquor Junction
10 49141 Mohammed Alam 4 MAIN ST 978-686-5999 Shetu, Inc. - DBA Richdale Dairy Stores
11 66715 Kellie Coulter 79 CHICKERING RD 781-356-1960 Super Petroleum, Inc.
12 53577 Tina Truong 1725 TURNPIKE ST 7812460201 A.L. Prime Energy
50 PETERS STREET, Unit Den Rock
13 49276 vick jain Wine and Spirits, 9787510214 miroli Ilc, dba denrock wine & spirits
DHARMESH DAVE 350 WINTHROP AVE, Unit Wine
14 49261 *closed* and Beer at the Andovers, 9786861864 Wine & Beer at the Andovers
15 49309 MUKESH Patel 260 WINTHROP AVE 7817990288 ITOWN MART
16 53564 Keith Pusey 350 WINTHROP AVE, U 10B 978-688-6322 Market Basket
17 71800 JIGAR PATEL 64 MAIN ST 201-310-7826 Main Street Liquors
North Andover Health Department
Community and Economic Development Division
NOTICE FROM THE NORTH ANDOVER BOARD OF HEALTH
TO ALL RETAILERS IN NORTH ANDOVER THAT SELL TOBACCO PRODUCTS
On October 24, 2019 the North Andover Board of Health enacted regulations
"Regulating the Sale and Use of Tobacco Products."
These new regulations will go into effect on January 1, 2020.
The provisions in these regulations include, but are not limited to,the following:
1) Prohibits the sale of all flavors (INCLUDING MINT, MENTHOL AND
WINTERGREEN) of tobacco and vaping products, except in adult-only
retail tobacco establishments. All tobacco and vaping products flavored with
mint, menthol or wintergreen can ONLY be sold in an adult-only retail
tobacco establishments. An"adult-only retail tobacco establishment"is a
store that:
a) Does not sell food, alcohol or any other beverages;
b) Does not have a lottery license;
c) Only has the purpose of selling tobacco and/or vaping products and/or
tobacco product paraphernalia;
d) Prohibits the entry of persons under the age of 21 at all times; and
e) Does not allow anyone under the age of 21 to work at the store.
2) Prohibits the sale of all vaping products (flavored and non-flavored), except in
adult-only retail tobacco establishments.
3) Caps the total number of stores that can sell tobacco at 16;
4) Caps the total number of"adult-only retail tobacco establishments" at 1.
5) Prohibits new locations of stores selling tobacco and/or vaping products
within 500 feet of existing stores that sell tobacco and/or vaping products.
Page 1 of 2
North Andover Health Department
120 Main Street
North Andover, MA 01845
Phone: 978.688.9540 Fax: 978.688.9542
6) Requires retailers ask for a valid photo ID card from anyone seeking to
purchase a tobacco or vape product who appears under the age of 40 in order
to verify he or she is at least 21 years of age.
7) Prohibits smoking or vaping in an adult-only retail tobacco establishment.
Copies of the new regulations can be found at:
https://www.northandovenna.gov/health/pa e�s/�ennits-and-regulations
If you have any questions, please call the North Andover Health Department at(978) 688-9540.
Sincerely,
The North Andover Board of Health
Page 2 of 2
North Andover Health Department
120 Main Street
North Andover,MA 01845
Phone: 978.688.9540 Fax: 978.688.9542
Town of North Andover
Board of Health
REGULATING THE SALE and USE OF TOBACCO PRODUCTS
SECTION 1: STATEMENT OF PURPOSE
WHEREAS there exists conclusive evidence that tobacco smoking causes cancer, respiratory
and cardiac diseases, negative birth outcomes, irritations to the eyes, nose and throat[l];
WHEREAS the U.S. Department of Health and Human Services has concluded that nicotine is
as addictive as cocaine or heroin[2] and the Surgeon General found that nicotine exposure during
adolescence, a critical window for brain development,may have lasting adverse consequences
for brain development,[3] and that it is an addiction to nicotine that keeps youth smoking past
adolescence[4];
WHEREAS a Federal District Court found that Phillip Morris, RJ Reynolds and other leading
cigarette manufacturers "spent billions of dollars every year on their marketing activities in order
to encourage young people to try and then continue purchasing their cigarette products in order
to provide the replacement smokers they need to survive" and that these companies were likely
to continue targeting underage smokers[5];
WHEREAS more than 80 percent of all adult smokers begin smoking before the age of 18,more
than 90 percent do so before leaving their teens, and more than 3.5 million middle and high
school students smoke[6];
WHEREAS 18.1 percent of current smokers aged<18 years reported that they usually directly
purchased their cigarettes from stores (i.e. convenience store, supermarket, or discount store) or
gas stations, and among 11'grade males this rate was nearly 30 percent[7];
WHEREAS the Institute of Medicine (IOM) concludes that raising the minimum age of legal
access to tobacco products to 21 will likely reduce tobacco initiation, particularly among
adolescents 15 - 17, which would improve health across the lifespan and save lives[8];
Whereas cigars and cigarillos, can be sold in a single "dose;" enjoy a relatively low tax as
compared to cigarettes; are available in fruit, candy and alcohol flavors; and are popular among
youth[9];
WHEREAS research shows that increased cigar prices significantly decreased the probability of
male adolescent cigar use and a 10% increase in cigar prices would reduce use by 3.4%[10];
WHEREAS 59% of high school smokers in Massachusetts have tried flavored cigarettes or
flavored cigars and 25.6% of them are current flavored tobacco product users; 95.1 % of 12—
17-year old's who smoked cigars reported smoking cigar brands that were flavored[11];
1
WHEREAS the Surgeon General found that exposure to tobacco marketing in stores and price
discounting increase youth smoking[12];
WHEREAS the federal Family Smoking Prevention and Tobacco Control Act(FSPTCA),
enacted in 2009,prohibited candy- and fruit-flavored cigarettes,[13] largely because these
flavored products were marketed to youth and young adults,[14] and younger smokers were
more likely to have tried these products than older smokers[15],neither federal nor
Massachusetts laws restrict sales of flavored non-cigarette tobacco products, such as cigars,
cigarillos, smokeless tobacco,hookah tobacco, and electronic devices and the nicotine solutions
used in these devices;
WHEREAS the U.S. Food and Drug Administration and the U.S. Surgeon General have stated
that flavored tobacco products are considered to be"starter"products that help establish smoking
habits that can lead to long-term addiction[16];
WHEREAS the U.S. Surgeon General recognized in his 2014 report that a complementary
strategy to assist in eradicating tobacco-related death and disease is for local governments to ban
categories of products from retail sale[17];
WHEREAS the U.S. Food and Drug Administration and the Tobacco Products Scientific
Advisory Committee concluded that menthol flavored tobacco products increased nicotine
dependence, decreased success in smoking cessation[18];
WHEREAS menthol makes it easier for youth to initiate tobacco use[19];
WHEREAS the number of tobacco retail establishment permit holders in North Andover
declined from 20 to 15 permit holders in 2019 and there has only been one adult only retail
tobacco establishment permit that has been applied for;
WHEREAS the U.S. Centers for Disease Control and Prevention has reported that the current
use of electronic cigarettes, a product sold in dozens of flavors that appeal to youth, among
middle and high school students tripled from 2013 to 2014[20];
WHEREAS 5.8% of Massachusetts youth currently use e-cigarettes and 15.9%have tried
them[21];
WHEREAS the Massachusetts Department of Environmental Protection has classified liquid
nicotine in any amount as an"acutely hazardous waste"[22];
WHEREAS in a lab analysis conducted by the FDA, electronic cigarette cartridges that were
labeled as containing"no nicotine" actually had low levels of nicotine present in all cartridges
tested, except for one [23]
WHEREAS according to the CDC's youth risk behavior surveillance system,the percentage of
high school students in Massachusetts who reported the use of cigars within the past 30 days was
10.8%in 2013[24];
2
WHEREAS data from the National Youth Tobacco Survey indicate that more than two-fifths of
U.S. middle and high school smokers report using flavored little cigars or flavored
cigarettes[25];
WHEREAS the sale of tobacco products is incompatible with the mission of health care
institutions because these products are detrimental to the public health and their presence in
health care institutions undermine efforts to educate patients on the safe and effective use of
medication, including cessation medication;
WHEREAS educational institutions sell tobacco products to a younger population, who are
particularly at risk for becoming smokers and such sale of tobacco products is incompatible with
the mission of educational institutions that educate a younger population about social,
environmental and health risks and harms; and
WHEREAS the Massachusetts Supreme Judicial Court has held that" . . . [t]he right to engage in
business must yield to the paramount right of government to protect the public health by any
rational means"[26].
Now, therefore it is the intention of the North Andover Board of Health to regulate the sale of
tobacco products.
SECTION 2: DEFINITIONS
For the purpose of this regulation, the following words shall have the following meanings:
2.1 ADULT-ONLY RETAIL TOBACCO ESTABLISHMENT: An establishment that
does not share space with another business, that shall have a seperate public entrance, that does
not sell food or alcohol, that does not have a restaurant license or lottery license,whose only
purpose is to sell or offer for retail sale tobacco products and/or tobacco product paraphernalia,
in which entry of persons under the age of 21 is prohibited at all times, and which maintains a
valid permit for the retail sale of tobacco products as required to be issued by the North Andover
Board of Health and any applicable state licenses. Entrance to the establishment must be secure
so that access to the establishment is restricted to employees and to those 21 years of age and
older. The establishment shall not allow anyone under 21 to work at the establishment.
2.2 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.
2.3 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.
2.4 CHARACTERIZING FLAVOR: A distinguishable taste or aroma imparted or
detectable either prior to or during consumption of a tobacco product or component part thereof,
including, but not limited to, tastes or aromas relating to any fruit, chocolate, vanilla, honey,
3
candy, cocoa, dessert, alcoholic beverage, menthol, mint or wintergreen, herb or spice.
"Characterizing flavor" does not include the taste or aroma of tobacco, additives, or flavorings
that do not contribute to the distinguishable taste or aroma of the product or the provision of
ingredient information.
2.5 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.
2.6 COMPONENT PART: Any element of a tobacco product, including, but not limited to,
the tobacco, filter, paper, mouthpiece, heating element battery and/or electronic circuits but not
including any constituent.
2.7 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 product during the processing, manufacturing or packaging of the
tobacco product. Such term shall include a smoke constituent from a tobacco product and a
vapor or aerosolization constituent from a tobacco product.
2.8 DISTINGUISHABLE: Perceivable by either the sense of smell or taste.
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 ELECTRONIC CIGARETTE: Any electronic device composed of a mouthpiece,
heating element, battery and/or electronic circuits that provides vapor of liquids, regardless of
nicotine content, or relies on vaporization of any solid or liquid substance, regardless of nicotine
content. This term shall include such devices whether they are manufactured as e-cigarettes,
e-cigars, e-pipes or under any other product name. An electronic cigarette includes any
component or part of an electronic cigarette,regardless of nicotine content, that rely on
vaporization or aerosolization, including but not limited to,pods, vape juice containers and
cartridges.
2.11 EMPLOYEE: Any individual who performs services for an employer.
2.12 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.
2.13 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 hallway.
2.14 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
4
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.
2.15 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 CMR 6.00. Health care institution includes, but is
not limited to,hospitals, clinics, health centers, pharmacies, drug stores, doctor's offices and
dentist's offices.
2.16 NON-RESIDENTIAL ROLL-YOUR-OWN (RYO)MACHINE: A mechanical device
made available for use (including 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. RYO
machines located in private homes used for solely personal consumption are not Non-Residential
RYO machines.
2.17 OUTDOOR SPACE: An outdoor area, open to the air at all times and cannot be
enclosed by a wall or side covering.
2.18 PERMIT HOLDER: Any person engaged in the sale or distribution of tobacco
products directly to consumers who applies for and receives a tobacco product sales permit or
any person who is required to apply for a tobacco product sales permit pursuant to these
regulations, or his or her business agent.
2.19 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 products
directly to consumers.
2.20 RETAIL ESTABLISHMENT: Any establishment selling, goods, articles or personal
services to the public, including but not limited to convenience stores, gas stations, grocery
stores, department stores, barber shops, nail salons, hair salons and tanning salons.
2.21 SELF SERVICE DISPLAY. Any display from which customers may select a tobacco
product without assistance from an employee or store personnel, excluding vending machines.
2.22 SMOKING(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.
2.23 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
5
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".
2.24 TOBACCO PRODUCT: Any product containing,made, or derived from tobacco
or nicotine that is intended for human consumption,whether smoked, chewed, absorbed,
dissolved, inhaled, snorted, sniffed, or ingested by any other means, including, but not
limited to: cigarettes, cigars, little cigars, chewing tobacco,pipe tobacco, snuff or electronic
cigarettes, electronic cigars, electronic pipes, electronic hookah,liquid nicotine, "e-liquids"
or other similar products, regardless of nicotine content,that rely on vaporization or
aerosolization. "Tobacco Product" includes any component or part of a tobacco product.
"Tobacco Product"does not include any product that has been approved by the United
States Food and Drug Administration either as a tobacco use cessation product or for other
medical purposes and which is being marketed and sold or prescribed solely for the
approved purpose.
2.25 TOBACCO PRODUCT SALES PERMIT: A permit issued by the Board of Health
upon application and in accordance with Section 4 of these regulations. Approval and a
Tobacco Product Sales Permit is required by any retail establishment or adult only tobacco
retail establishment to sell any tobacco product in North Andover. Selling any tobacco
product in North Andover without a valid Tobacco Product Sales Permit is a violation of
these regulations and subject to enforcement.
2.26 VAPING PRODUCTS: 1) any product intended for human consumption by inhalation
regardless of nicotine content,whether for one-time use or reusable,that relies on vaporization or
aerosolization, including but not limited to electronic cigarettes, electronic cigars electronic
cigarillos, electronic pipes, electronic vaping product delivery pens,hookah pens, and any other
similar devices that rely on vaporization or aerosolization; and 2) any component,part, or
accessory of a product or device defined in subsection 1), even if sold separately. "Vaping
products" do not include any product that has been approved by the Federal Food and Drug
Administration either as a tobacco use cessation product or for other medical purposes and which
is being marketed and sold or prescribed solely for the approved purpose.
2.27 VENDING MACHINE: Any automated or mechanical self-service device,which
upon insertion of money,tokens or any other form of payment, dispenses or makes cigarettes,
any other tobacco product.
SECTION 3: TOBACCO PRODUCT SALES TO PERSONS UNDER THE AGE OF 21
PROHIBITED
-3:1 PROHIBITION UNDER TWENTY ONE YEARS OF AGE: No person shall sell or
otherwise distribute tobacco products to persons under the age of 21.
6
�I
3.2 REQUIRED SIGNAGE: In conformance with G.L. c. 270, § 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, 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 under the age of 40.
3.4 FACE TO FACE SALES: All retail sales of tobacco 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 products must occur at a location with a valid tobacco product sales
permit.
SECTION 4: TOBACCO PRODUCT SALES PERMIT
4.1 No person shall sell or otherwise distribute tobacco products at retail within North
Andover without first obtaining a Tobacco 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 products
in North Andover.
4.2 As part of the Tobacco 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 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 a current tobacco sales
license issued by the Massachusetts Department of Revenue before a Tobacco Product Sales
Permit can be issued.
7
4.4 The fee for a Tobacco 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 301 of every
year.
4.5 A separate permit is required for each location where a retail establishment is selling
tobacco products.
4.6 Each Tobacco Product Sales Permit shall be displayed at the retail establishment in a
conspicuous place.
4.7 No Tobacco Product Sales Permit holder shall allow any employee to sell tobacco
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 Product Sales Permit is non-transferable
4.9 Issuance of a Tobacco 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 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.
4.11 A Tobacco 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 fines has expired and/or has not satisfied any
outstanding permit suspensions.
4.12 An Adult-Only Retail Tobacco Establishment may be issued a Tobacco Product Sales
Permit authorizing the sale of flavored tobacco products or blunt wraps provided the Adult-Only
Retail Tobacco Establishment meets with the following conditions:
a) The business establishment does not share retail or business space with another
business establishment. It has a separate public entrance from any other business
establishment. The entrance is secured so that access is restricted to employees and
individuals twenty one (21)years of age or older.
b) It does not sell food, drinks, alcohol, lottery tickets, goods or services nor shall it hold
a license to sell food, a restaurant license, an alcohol license, or a lottery license.
c) No person under the age of twenty one (21) shall enter the premises or be employed
by the establishment.
8
d) It shall not be located within five hundred(500') feet of a retailer with a tobacco
product sales permit.
e) It shall hold all permits and licenses required by the Commonwealth of Massachusetts.
4.13 A Tobacco Product Sales Permit limited to the sale of natural tasting tobacco products
that does not have a characterizing flavor may be issued to other retail establishments that meet
the criteria of the North Andover Board of Health regulations and all state and federal laws
pertinent to the sale of natural tasting tobacco products.
4.14 At any given time, there shall be no more than SIXTEEN (16) Tobacco Product Sales
Permits issued in the Town of North Andover. This section shall only apply to permits newly
issued after the effective date of this regulation. No renewal of an existing valid permit will be
denied based on the permit capping requirements described herein. A valid existing permit shall
not include any permit that has not been renewed within thirty(30) days of its expiration. Any
such permit shall be treated as a New Permit.
4.15 At any given time there shall be no more than ONE (1) Tobacco Product Sales Permit
issued to an Adult-Only Retail Tobacco Establishment.
4.16 A Tobacco Product Sales Permit shall not be issued to any new applicant for a retail
establishment located within five hundred(500') feet of a public or private elementary or
secondary school as measured by a straight line from the nearest point of the property line of the
school to the nearest point of the property line of the site of the applicant's business premises.
4.17 A Tobacco Product Sales Permit shall not be issued to any new applicant for a retail
establishment located within five hundred(500') feet of a retailer with a valid Tobacco Product
Sales Permit as measured by a straight line from the nearest point of the property line of the
retailer with a valid Tobacco Product Sales Permit to the nearest point of the property line of the
site of the applicant's business premises.
4.18 Applicants who purchase or acquire an existing business that holds a valid Tobacco
Product Sales Permit at the time of the sale or acquisition of said business must apply within
sixty (60) days of such sale or acquisition for the permit held by the Current Permit Holder if the
Applicant intends to sell tobacco products, as defined herein. Such applicant may choose to
apply for a Tobacco Product Sales Permit for an Adult-Only Retail Tobacco Store if the Current
Permit Holder possessed the same or if a Tobacco Product Sales Permit for an Adult-Only Retail
Tobacco Store is available per subsection 4.15.
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
9
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.
(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 6: THE SALE OF FLAVORED TOBACCO PRODUCTS PROHIBITED
6.1 No person shall sell or distribute or cause to be sold or distributed any flavored tobacco
products except in smoking bars and adult-only retail tobacco establishments.
SECTION 7: THE SALE OF BLUNT WRAPS
7.1 No person or entity shall sell or distribute blunt wraps within North Andover, except in
adult-only retail tobacco establishments are permitted to sell or distribute blunt wraps.
SECTION 8: FREE DISTRIBUTION AND COUPON REDEMPTION
8.1 No person shall:
(a) Distribute, or cause to be distributed, any free samples of tobacco products.
(b) Accept or redeem, offer to accept or redeem, or cause or hire any person to accept or
redeem or offer to accept or redeem any coupon that provides any tobacco product, as
defined herein, without charge or less than the listed or non-discounted price in exchange
for the purchase of any other tobacco product.
(c) Sell a tobacco product, as defined herein, to consumers through any multi pack
discounts (e.g. "buy two get one free") or otherwise provide or distribute to consumers
any tobacco product, as defined herein,without charge or for less than the listed
non-discounted price in exchange for the purchase of any other tobacco product.
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SECTION 9: OUT-OF-PACKAGE SALES
9.1 The sale or distribution of tobacco 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.
(a) The sale or distribution of tobacco products, as defined herein, in any form other than
an original factory-wrapped package is prohibited, including the repackaging or
dispensing of any tobacco product, as defined herein, for retail sale. 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.
(b) Pursuant to the Governor's September 24, 2019 Public Health Emergency Order, no
Permit holder shall sell Liquid Nicotine Containers. The North Andover Board of
Health may reconsider this prohibition at the time the Public Health Emergency has been
deemed to be resolved. If the prohibition ends thereafter,the Permit holder who sells
Liquid Nicotine Containers must comply with the provisions of 310 CMR 30.000, and
must provide the North Andover Board of Health with a written plan for disposal of said
product, including disposal plans for any breakage, spillage or expiration of the product.
(c) All permit holders must comply with 940 CMR 21.05 which reads: "It shall be an
unfair or deceptive act or practice for any person to sell or distribute nicotine in a liquid
or gel substance in Massachusetts after March 15, 2016 unless the liquid or gel product is
contained in a child-resistant package that, at a minimum,meets the standard for special
packaging as set forth in 15 U.S. C. §§1471 through 1476 and 16 CFR §1700 et. seq."
(d) No permit holder shall refill a cartridge that is pre-filled and sealed by the
manufacturer and not intended to be opened by the consumer or retailer.
SECTION 10: SELF SERVICE DISPLAYS
10.1 All self-service displays of tobacco products are prohibited. All humidors including, but
not limited to, walk-in humidors must be locked.
SECTION 11: TOBACCO VENDING MACHINES
11.1 All tobacco product vending machines are prohibited.
SECTION 12: NON-RESIDENTIAL ROLL-YOUR-OWN (RYO) MACHINE
12.1 All Non-Residential Roll-Your-Own(RYO) Machines are prohibited.
11
SECTION 13: RESTRICTIONS ON THE SALE OF TOBACCO PRODUCTS AT
HEALTH CARE INSTITUTIONS
13.1 No Health Care Institution located in the Town of North Andover shall sell or authorize
the sale of tobacco products within its buildings, or facilities or on its grounds. G.L. c. 111, §
61A, as amended 2018
SECTION 14: PROHIBITION OF THE SALE OF TOBACCO PRODUCTS BY
EDUCATIONAL INSTITUTIONS:
14.1 No educational institution located in the Town of North Andover shall sell or cause to
be sold tobacco products. This includes all educational institutions as well as any retail
establishments that operate on the property of an educational institution.
SECTION 15: SALE OF ELECTRONIC CIGARETTES PROHIBITED:
15.1 Consistent with the Governor's September 24, 2019 Declaration of a Public Health
Emergency,no person shall sell, distribute, or cause to be sold or distributed any vaping products
as defined herein. If the Public Health Emergency Ban has been deemed to be resolved or
rescinded, the sale of electronic cigarettes and all vaping products or accessories will be
restricted to only Adult-Only Tobacco Retail Establishments.
SECTION 16: PROHIBITING SMOKING IN WORKPLACES AND PUBLIC PLACES
16.1 The Board of Health adopts the Massachusetts Smoke-Free Workplace by reference and
any future revisions as a local regulation. G.L. c. 270, §§ 21, 22.
16.2 Pursuant to G.L. c. 270, § 22 0), smoking is also hereby prohibited in the following
locations:
(a) Adult-Only Retail Tobacco Store;
(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;
(d) Within Twenty-Five (25) feet of a building entrance or enclosed space where smoking
is prohibited.
16.3 The use of e-cigarettes or any vaping product is prohibited wherever smoking is
prohibited. G. L. c. 270, § 22 and North Andover Board of Health regulation § 4.17.002.
12
SECTION 17: VIOLATION OF TERMS OF PERMIT AND REGULATIONS
17.1 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 products. The violator shall receive:
(a) In the case of a first violation, a fine of Three Hundred($300) dollars;
(b) In the case of a second violation within twenty-four(24) months of the date of the
first violation, a fine of Three Hundred($300) dollars and the Tobacco 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 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 Tobacco Product Sales
Permit may be revoked.
17.2 Refusal to cooperate with inspections pursuant to this regulation shall result in the
suspension of the Tobacco Product Sales Permit for Thirty (30) consecutive business days.
17.3 In addition to the monetary fines set above, any permit holder who engages in the sale or
distribution of tobacco 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.
17.4 The North Andover Board of Health shall provide notice of their intent to suspend or
revoke a Tobacco 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 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 shall be
removed from the retail establishment upon suspension or revocation of the Tobacco Product
Sales Permit. Failure to remove all tobacco products shall constitute a separate violation of this
regulation.
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SECTION 18: VIOLATIONS OF REGULATIONS
18.1 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 21D or
by filing a criminal complaint at the appropriate venue. Each day any violation exists shall be
deemed to be a separate offense.
18.2 An individual or person who violates the provisions of G.L. c. 270, § 21 and 22 by
smoking in a place where smoking is prohibited shall be subject to a civil penalty of$100 for
each violation. G.L. c. 270, § 22(m)(2). Any individual or person who violates the provisions of
Section 16.2 of these regulations shall be subject to a fine of$25.00. Each occurrence of a
violation shall be a separate offense.
18.3 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 19: OTHER APPLICABLE LAWS
19.1 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 20 THROUGH 21
Reserved for future regulations, amendments, etc.
SECTION 22: SEVERABILITY
22.1 If any provision of these regulations is declared invalid or unenforceable, the other
provisions shall not be affected thereby but shall continue in fall force and effect.
SECTION 23: PREVIOUS REGULATION SUPERCEDED
23.1 This regulation supersedes the prior regulation titled"Regulations Affecting Smoking in
Certain Places and Youth Access to Tobacco," as adopted with an effective date of September 1,
2015 and thereafter amended.
14
Effective Date:
This regulation was adopted on October 24,2019.
This regulation shall take effect on January 1, 2020.
Signatures:
6124 �a°
Francis . MacMillan, M.D., Chaum n Date of Signature
oZ o?.U/ .
qepl,3KCCarthy, Clerk Date of Signature
Michele Davis, R.N., Member Date of Signature
\14z,4 ,
Patrick Sc on, D.O., Member Date of Signature
Daphnee Alva-LaFluer,Member Date of Signature
Latest Revision Date: October 24, 2019
15
[1] Center for Disease Control and Prevention,(CDC) (2012),Health Effects of Cigarette Smoking Fact
Sheet. Retrieved from:
http://www.cdc.gov/tobacco/data statistice/fact sheets/health effects/effects—cig_smoking/index.htm.
[2] CDC (2010),How Tobacco Smoke Causes Disease: The Biology and Behavioral Basis for
Smoking-Attributable Disease. Retrieved from: http://www.cdc.gov/tobacco/data—statistics/sgr/2010/.
[3] U.S. Department of Health and Human Services. 2014. The Health Consequences of Smoking—50
Years of Progress:A Report of the Surgeon General.Atlanta: U.S.National Center for Chronic Disease
Prevention and Health Promotion, Office on Smoking and Health,p. 122.Retrieved from:
http://www.surgeongeneral.gov/library/reports/50-years-of-progress/full-report.pdf.
[4] Id. at Executive Summary p. 13. Retrieved from:
http://www.surgeongeneral.gov/library/reports/50-years-of-progress/exec-su=ary.pdf
[5] United States v. Phillip Morris,Inc..RJ Reynolds Tobacco Co., et al.,449 F.Supp.2d 1 (D.D.C. 2006)
at Par. 3301 and Pp. 1605-07.
[6] SAMHSA, Calculated based on data in 2011 National Survey on Drug Use and Health and U. S.
Department of Health and Human services(HHA).
[7] CDC (2013)Youth Risk Behavior, Surveillance Summaries (MMWR 2014: 63 (No SS-04)).
Retrieved from: www.cdc.gov.
[8] IOM(Institute of Medicine)2015.Public Health Implications of Raising the Minimum Age of Legal
Access to Tobacco Products. Washington DC: The National Academies Press,2015.
[9] CDC (2009), Youth Risk Behavior, Surveillance Summaries(MVIWR 2010: 59, 12,note 5). Retrieved
from: http:www.edc.gov/mmwr/pdf/ss/ss5905.pdf.
[10] Ringel,J.,Wasserman,J., &Andreyeva,T. (2005) Effects of Public Policy on Adolescents'Cigar
Use: Evidence from the National Youth Tobacco Survey. American Journal of Public Health, 95(6),
995-998, doi: 10.2105/AJPH.2003.030411 and cited in Cigar, Cigarillo and Little Cigar Use among
Canadian Youth: Are We Underestimating the Magnitude of this Problem?, J.Prim.P. 2011,Aug:
32(3-4):161-70. Retrieved from: www.nebi.nim.gov/pubmed/21809109.
[11]Massachusetts Department of Public Health,2015 Massachusetts Youth Health Survey(MYHS);
Delneve CD et al.,Tob Control,March 2014:Preference for flavored cigar brands among youth,young
adults and adults in the USA.
[12]U.S.Department of Health and Human Services. 2012.Preventing Tobacco Use Among Youth and
Young Adults:A Report of the Surgeon General.Atlanta:U.S.National Center for Chronic Disease
Prevention and Health Promotion, Office on Smoking and Health,p. 508-530,
wwwsurgeoiigener•al.gov/libraryhreports/preventiizg-youth-tobacco-use/ull-report.pd
[13] 21 U.S.C. § 387g.
16
i
i
i
[14] Carpenter CM,Wayne GF,Pauly JL,et al.2005. "New Cigarette Brands with Flavors that Appeal to
Youth:Tobacco Marketing Strategies."Health Affairs.24(6): 1601-1610;Lewis M and Wackowski 0.
2006. "Dealing with an Innovative Industry:A Look at Flavored Cigarettes Promoted by Mainstream
Brands."American Journal of Public Health. 96(2): 244-251; Connolly GN.2004. "Sweet and Spicy
Flavours:New Brands for Minorities and Youth." Tobacco Control. 13(3): 211-212;U.S.Department of
Health and Human Services.2012.Preventing Tobacco Use Among Youth and Young Adults:A Report of
the Surgeon General.Atlanta: U.S.National Center for Chronic Disease Prevention and Health
Promotion, Office on Smoking and Health,p. 537,
wwwsurgeongeneral gov/libraa report
[15]U.S.Department of Health and Human Services.2012.Preventing Tobacco Use Among Youth and
Young Adults:A Report of the Surgeon General.Atlanta:U.S.National Center for Chronic Disease
Prevention and Health Promotion,Office on Smoking and Health,p. 539,
www surgeongeneral.gov/librarv/reports/preventing-vouth-tobacco-use/ Il-report pdf
[16]Food and Drug Administration.2011.Fact Sheet:Flavored Tobacco Products,
wwwfda gov/downloads/TobaccoProducts/ProtectingKidsfrom Tobacco/FlavoredTobacco/7JCM1832I p
U.S.Department of Health and Human Services. 2012.Preventing Tobacco Use Among Youth and
Young Adults:A Report of the Surgeon General.Atlanta:U.S.National Center for Chronic Disease
Prevention and Health Promotion,Office on Smoking and Health,p. 539,
wwwsurgeongeneral.gov/librarv/reports/preventing,-,vouth-tobacco-use/ ill-reportdf
[17] See fn. 3 at p. 85.
[18]www.fda.gov/downloads/ucm361598.12df,
Https://tobacco,ucsfedu/tpsac-gave-fda-what-it-needs-to-ban-menthol
[19]www.tobaccofreeldds.org/assets/factsheet/0390.pdf
[20] Centers for Disease Control&Prevention.2015. "Tobacco Use Among Middle and High School
Students—United States,2011 2014,"Morbidity and Mortality Weekly Report(A04") 64(14):
381-385;
[21]Massachusetts Department of Public Health,2015 Massachusetts Youth Health Survey(MYHS)
[22] 310 CMR 3 0.13 6
[23]Food and Drug Administration,Summary of Results:Laboratory Analysis of Electronic Cigarettes
Conducted by FDA, available at:http://www.fda.gov/newsevents/publichealthfocus/ucm173146 htm.
[24]See fn. 7.
[25]King BA,Tynan MA,Dube SR,et al.2013."Flavored-Little-Cigar and Flavored-Cigarette Use
Among U.S.Middle and High School Students."Journal ofAdolescent Health. [Article in press],
www,iahonl ine.org/article/S1054-139X'162813%2900415-1/abstract.
[26] Druzik et al v. Board of Health of Haverhill,324 Mass.129(1949).
17
105 CMR 665.000: MINIMUM STANDARDS FOR RETAIL SALE OF TOBACCO AND
ELECTRONIC NICOTINE DELIVERY SYSTEMS
665.005 Definitions
665.010 Sale of Tobacco Products and Electronic Nicotine Delivery Systems
665.013 Permitting Requirements
665.015 Required Signage
665.017 Advertising
665.020 Identification Requirements
665.025 Prohibition on Coupons and Other Discounts
665.030 Out-of-Package Sales
665.035 Liquid Nicotine Containers
665.040 Requirements for Retail Establishments
665.045 Violations
665.050 Order to Cease and Desist
665.055 Enforcement
665.060 Severability
665.005: Definitions
Board of Health means the appropriate and legally designated health authority of the city,
town, or other legally constituted governmental unit within the Commonwealth having
the usual powers and duties of the board of health of a city or town.
Business Agent means an individual who has been designated by the owner or operator of
any tobacco retail store or smoking bar to be the manager or otherwise in charge of said
establishment.
CharacterizingF lavor means a distinguishable taste or aroma, other than the taste or
aroma of tobacco, imparted or detectable before or during consumption of a tobacco
product, including, but not limited to, a taste or aroma relating to any fruit, chocolate,
vanilla,honey, candy, cocoa, dessert, alcoholic beverage, menthol,mint,wintergreen,
herb, or spice;provided, however,that no tobacco product shall be determined to have a
characterizing flavor solely because of the provision of ingredient information or the use
of additives or flavorings that do not contribute to the distinguishable taste or aroma of
the product.
Child-Resistant Packaging means packaging intended to reduce the risk of a child
ingesting nicotine and that meets the minimum standards of 16 C.F.R. 1700 et seq.,
pursuant to 15 U.S.C. 1471 to 1476, inclusive.
C ,
J
Coupon means any card,paper, note, form, statement,ticket or other communication
distributed for commercial or promotional purposes to be later surrendered by the bearer
so as to receive an article, service or accommodation without charge or at a discount
price.
Department means the Massachusetts Department of Public Health.
Distinguishable means perceivable by either the sense of smell or taste.
Electronic Nicotine Delivery System means an electronic device, whether for 1-time use
or reusable, that can be used to deliver nicotine or another substance to a person inhaling
from the device including, but not limited to,electronic cigarettes, electronic cigars,
electronic cigarillos, electronic pipes, vaping pens, hookah pens and other similar devices
that rely on vaporization or aerosolization; provided,however,that"electronic nicotine
delivery system" shall also include any noncombustible liquid or gel that is manufactured
into a finished product for use in such electronic device;provided further,that"electronic
nicotine delivery system" shall also include any component,part, or accessory of a device
used during the operation of the device even if the part or accessory was sold separately;
provided further,that"electronic nicotine delivery system" shall not include a product
that has been approved by the United States Food and Drug Administration for the sale of
or use as a tobacco cessation product or for other medical purposes and is marketed and
sold or prescribed exclusively for that approved purpose.
Electronic Nicotine DeliverySystem Flavor Enhancer means any product designed,
manufactured,produced, marketed or sold to produce a characterizing flavor when added
to any electronic nicotine delivery system.
Flavored Electronic Nicotine Delivery System means any electronic nicotine delivery
system, 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 an electronic nicotine delivery system, or by any person authorized or
permitted by the manufacturer to make or disseminate public statements concerning such
electronic nicotine delivery system, that such electronic nicotine delivery system has or
produces a characterizing flavor shall constitute presumptive evidence that the electronic
nicotine delivery system is a Flavored Electronic Nicotine Delivery System.
Liquid Nicotine Container means a package: (i) from which nicotine or other substance in
a solution or other form is accessible through normal and foreseeable use by a consumer;
and(ii)that is used to hold soluble nicotine or other substance in any concentration;
provided, however, that"liquid nicotine container" shall not include a sealed, prefilled
and disposable container of nicotine or other substance in a solution or other form in
which the container is inserted directly into an electronic cigarette, electronic nicotine
delivery system or other similar product if the nicotine or other substance in the container
is inaccessible through customary or reasonably foreseeable handling or use, including
reasonably foreseeable ingestion or other contact by children.
Listed or Non-Discounted Price means the higher of the price listed for a tobacco product
on its package or the price listed on any related shelving,posting, advertising or display
at the place where the tobacco product is sold or offered for sale plus all applicable taxes
if such taxes are not included in the state price, and before the application of any
discounts or coupons.
Minimum Legal Sales Age means the minimum age of a person to whom a tobacco
product may be sold or provided as determined by the Board of Health,provided that
such age may not be less than 21 years of age except for those individuals who attained
the age of 18 before December 31, 2018, as verified by said person's proof of
identification;provided further that a person who attained the age of 18 before December
31, 2018 shall be subject to any municipal ordinance, by-law or other regulation that
prohibited sales of tobacco products to persons under the age of 19,20 or 21 in effect on
December 30, 2018.
Person means any individual, firm, fiduciary, partnership, corporation,trust or
association, however formed, or a club,trustee, agency or receiver.
Retail Establishment means a physical lace of business or a section of a physical lace
pY p pY P
of business in which a tobacco product is offered for sale to consumers.
Retailer means a person that operates a retail establishment.
Retail Tobacco Store means 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 appropriate authority in the city or town where the establishment is located.
Smoking Bar means an establishment that: (i)exclusively occupies an enclosed indoor
space and is primarily engaged in the retail sale of tobacco products for consumption by
customers on the premises; (ii) derives revenue from the sale of food, alcohol or other
beverages that is incidental to the sale of a tobacco product and prohibits entry to a
person under 21 years of age; (iii)prohibits a food or beverage not sold directly by the
establishment from being consumed on the premises; (iv) maintains a valid permit for the
retail sale of a tobacco product as required to be issued by the appropriate authority in the
city or town in which the establishment is located; and(v) maintains a valid permit issued
by the department of revenue to operate as a smoking bar.
Tobacco product means a product containing,made or derived from tobacco or nicotine
that is intended for human consumption, whether smoked, chewed, absorbed,dissolved,
inhaled, snorted, sniffed or ingested by any other means including,but not limited to,
cigarettes, cigars, little cigars, chewing tobacco,pipe tobacco, snuff, electronic cigarettes,
electronic cigars, electronic pipes, electronic nicotine delivery systems or any other
similar products that rely on vaporization or aerosolization;provided,however, that
"tobacco product" shall also include any component,part or accessory of a tobacco
product; and provided further, that"tobacco product" shall not include a product that has
been approved by the United States Food and Drug Administration for the sale of or use
as a tobacco cessation product and is marketed and sold exclusively for the approved
purpose.
665.010: Sale of Tobacco Products and Electronic Nicotine Delivery Systems
(A) No person shall sell or provide a tobacco product to any individual under the
minimum legal sales age, as verified by said person's valid government-issued
photographic identification.
(B) Retail establishments other than retail tobacco stores or smoking bars shall not place
any tobacco product on the counter, but shall place all tobacco products for sale behind
the counter where retail sales are made in the establishment and out of the reach of
consumers.
(C) No person shall sell an electronic nicotine delivery system with nicotine content
greater than 35 milligrams per milliliter outside of a retail tobacco store or smoking bar.
Retail establishments including retail tobacco stores or smoking bars may sell or provide
unflavored electronic nicotine delivery systems with nicotine content less than or equal to
35 milligrams per milliliter. Prior to the sale of such a product in a retail establishment
other than a retail tobacco store or smoking bar,the product's manufacturer must submit
to the owner,retailer, or other person in charge of any retail establishment that is not a
retail tobacco store or smoking bar documentation indicating the nicotine content
expressed as milligrams per milliliter for each product to be sold in the retail
establishment. The owner,retailer,or other person in charge of the retail establishment
must maintain record of the nicotine content submitted by the manufacturer for each
electronic nicotine delivery system sold or offered for sale within the retail establishment,
and provide such records upon request of any authorized enforcement agent, including
Boards of Health or their agents and the Department or its agents.
(D) No person,retail establishment, or manufacturer shall sell, distribute, cause to be
sold or distributed, or offer for sale to a consumer located in the Commonwealth a
flavored electronic nicotine delivery system or electronic nicotine delivery system flavor
enhancer except for a smoking bar for on-site consumption.
(E) No person, retail establishment, or manufacturer shall sell online, distribute online,
or cause to be sold or distributed online to any consumer located in the Commonwealth,
an electronic nicotine delivery system, except for a non-flavored electronic nicotine
delivery system with nicotine content less than or equal to 35 milligrams per milliliter.
665.013 Permitting Requirements
(A)All retail tobacco stores and smoking bars shall obtain prior to operation and shall
maintain during any period of operation a municipal permit allowing the sale or
distribution of tobacco products.
(B)Retail tobacco stores and smoking bars in operation prior to December 11,2019, and
compliant with all then existing permitting requirements in the municipality in which
they operate shall not be subject to 105 CMR 665.013(A)unless the municipality in
which they operate later imposes a municipal permitting requirement applicable to such
establishments.
665.015: Required Signnage
(A)All retail establishments, including smoking bars and retail tobacco stores, shall
conspicuously post signage, in the form developed and made available by the
Department. Such signage shall include: (i) a copy of MGL c. 270, §§ 6 and 6A, (ii)
referral information for smoking cessation resources, (iii) a statement that sale of tobacco
products, including e-cigarettes, to someone under the minimum legal sales age of[AGE]
years is prohibited, (iv)health warnings associated with using electronic nicotine delivery
systems, and, (v) except in the case of smoking bars, notice to consumers that the sale of
flavored electronic nicotine systems are prohibited at all times. Such signage shall be
posted conspicuously 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.
(B) In addition to the signage required by 105 CMR 665.015(A), smoking bars and retail
tobacco stores shall post signage, in the form developed and made available by the
Department, on the exterior of the door providing entrance to the tobacco retail store or
smoking bar and such sign shall not be obstructed from view or placed at a height of less
than 4 feet or greater than 9 from the bottom of the door. Such signage shall: (i)warn
persons entering that smoking and vaping may be present on the premises, and provide
information concerning the health risks associated with second-hand smoke and the use
of electronic nicotine delivery systems; and(ii) state that"No person under the age of 21
years is permitted on the premises at any time."
(C) The owner,retailer, or other person in charge of a retail establishment shall
conspicuously post any additional signs required by the Department in a form and
manner as required by the Department.
(D) Any person who violates 105 CMR 665.015 shall be subject to the provisions of 105
CMR 665.045; provided that,however, any retail establishment who violates 105 CMR
665.015(A)(i) or 105 CMR 665.015(A)(ii) shall additionally be subject to a fine of not
more than$50. Any person found to have unlawfully removed a copy of the postings
required by 105 CMR 665.015(A)(i) or 105 CMR 665.015(A)(ii) shall be punished by a
fine of not more than $10.
665.017: Advertising
(A) No person or retail establishment shall:
(1) Market or advertise a proposed sale or distribution of any tobacco product
prohibited for sale or distribution within the retail establishment; or
(2) Use fraudulent or misleading statements in advertisements for tobacco
products, including the use of any safety or efficacy claims that have not been
approved by the United States Food and Drug Administration; or
(3) Use or display tobacco product advertisements that depict celebrities,
mascots, sponsorships, cartoons, or any other similar endorsements.
665.020: Identification Requirements
(A) Unless otherwise specified in 105 CMR 665.000, each person selling or providing
tobacco 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 the minimum legal sales age, as verified by said person's proof of identification.
(B) In addition to the requirements of 105 CMR 665.020(A), an employee of a retail
tobacco store or smoking bar must inspect the individual's valid government-issued
photographic identification and determine the individual's age prior to said individual
entering said tobacco retail store or smoking bar. An individual shall not be admitted to
the tobacco retail store or smoking bar unless the employee has verified that the
individual meets minimum legal sales age, as verified by said person's proof of
identification.
J
(C)Mail-order or internet sales shall require verification that the purchaser is at least the
Minimum Legal Sales Age. Verification of age through the mail or internet shall consist
of, at a minimum:
(1) verification that the purchaser is of the Minimum Legal Sales Age through a
commercially available database, or aggregate of databases,that is regularly used
by government and business for the purpose of age and identity verification; and
(2) use of a method of mailing, shipping, or delivery that requires signature of a
person who is of the Minimum Legal Sales Age before the shipping package is
released.
(3) Any information required to complete the age verification process must be re
quested on a form separate from that used to collect payment information, shall
not include Personal Information as defined by M.G.L. c. 93H, and shall not be
used for any purposes other than age verification.
665.025: Prohibition on Coupons and Other Discounts
No person shall accept or redeem, offer to accept or redeem, or cause or hire any person
to accept or redeem or offer to accept or redeem any coupon that provides any tobacco
product without charge or for less than the listed or non-discounted price. No retail
establishment that is not a retail tobacco store or smoking bar, or any other establishment
shall distribute or cause to be distributed a free sample of a tobacco product.
665.030: Out-of-Package Sales
(A) The sale of tobacco products, as defined herein, in any form other than an original
factory wrapped package is prohibited, including the repackaging or dispensing of any
tobacco product for retail sale.
(B) No person shall refill a cartridge that is prefilled and sealed by the manufacturer and
not intended to be opened by the consumer or retailer.
665.035: Liquid Nicotine Container Packaging
No person shall knowingly sell or provide:
(A) A liquid or gel substance containing nicotine unless the substance is contained in
child-resistant packaging; or
(B) A liquid nicotine container unless the container includes child-resistant packaging as
part of its design.
665.040: Requirements for Retail Establishments
A retail establishment operating on or after December 11, 2019, must meet the following
requirements:
(A) Only establishments with a permanent, non-mobile location are eligible to operate.
(B) Operation of a retail establishment shall be conditioned on the retailer's or retail
establishment owner's consent to unannounced,periodic inspections of his or her retail
establishment and tobacco products to ensure compliance with 105 CMR 665.000 and
any applicable local regulations, orders, or ordinances.
(C) A retail establishment shall be prohibited from selling tobacco products if the retailer
or owner of the retail establishment has failed to pay all fines issued and the time period
to appeal the fines has expired and/or the retail establishment has not satisfied any
outstanding orders issued pursuant to 105 CMR 665.000.
(D) Sale of a tobacco product by a retail establishment to a person under the minimum
sales age shall result in the retail establishment being prohibited from selling tobacco
products for up to 30 consecutive business days.
665.045: Violations
Unless otherwise specified or provided for in 105 CMR 665.000,violations of 105 CMR
665.000 shall be assessed as follows:
(A) It shall be the responsibility of any person to ensure compliance with 105 CMR
665.000. If an inspection pursuant to 105 CMR 665.000 reveals a retail establishment,
and/or his or her business agent does not comply with the provisions of 105 CMR
665.000,the retail establishment shall be ordered to comply with the violated provision
of 105 CMR 665.000. In addition to the correction order,the following fines and actions
apply against any person who violates 105 CMR 665.000:
(1) In the case of a first violation, a fine of$1,000 shall be imposed.
(2) In the case of a second violation within a period of 36 months from the first
violation, a fine of$2,000 shall be imposed; and a prohibition on the sale of
tobacco products may be imposed for at least one day and up to seven consecutive
business days.
(3) In the case of a third violation within a period of 36 months from the first
violation or additional violations during that time period, a fine of$5,000 shall be
imposed; and a prohibition on the sale of tobacco products may be imposed for at
least seven consecutive business days and up to 30 consecutive business days.
(B) Failure to cooperate with inspections pursuant to this regulation shall result in the
prohibition on the sale of tobacco products for up to 30 consecutive business days.
(C) Consistent with 105 CMR 665.055, a retail establishment shall be provided notice of
the intent to prohibit the sale of tobacco products at or by the retail establishment. The
notice shall contain the reasons therefor and establish a time and date for a hearing. The
retail establishment or its business agent shall have an opportunity to be heard at such
hearing and shall be notified of the decision regarding the retail establishment's
prohibition from selling tobacco products and the reasons therefor in writing. After a
hearing, the retail establishment may be prohibited from selling tobacco products upon a
finding that a violation of 105 CMR 665.000 for which such prohibition is applicable
occurred. All tobacco products shall be removed from the retail establishment upon an
indefinite suspension from operating as a retail establishment. Failure to remove all
tobacco products shall constitute a separate violation of 105 CMR 665.000.
(D) Separate Violations: Each day any violation of 105 CMR 665.000 exists shall be
deemed to be a separate offense.
665.050: Order to Cease and Desist
(A) An Order to Cease and Desist may be issued by the Department or Board of Health
to a person or a business agent of a retail establishment upon the regulatory authority's
reasonable belief that:
(1) A person is conducting sales of tobacco products in violation of the law,
regulations, and/or standards applicable to it; or
(2) A person refuses access to the premises and/or records to authorized
enforcement agents; or
(3) A person or retail establishment is operating in a manner that may pose an
imminent danger to the public health; or
(4) A retail establishment has failed to comply with a correction order within the
time specified; or
(5) A retail establishment is operating in a manner that is unsafe or otherwise
below the accepted standards for the type of operation and summary closure is
authorized by statute on these grounds.
(B) Service of Orders to Cease and Desist shall be on the person or retail establishment
or business agent of the retail establishment by:
(1) Personal delivery by an agent of the regulatory agency; or
(2) Posting in a conspicuous place at the retail establishment; or
(3) Simultaneously mailing, by first class and certified mail return receipt
requested; or
(4) By any officer of the Commonwealth authorized to make service.
Notice is deemed to be served if the person or retail establishment or business
agent of the retail establishment has actual notice of the Order to Cease and
Desist.
665.055: Enforcement
A Local Enforcement.
(1) General Procedures. Unless otherwise expressly provided in any general law
to the contrary, each board of health may enforce 105 CMR 665.000, or otherwise
at law or in equity in the same manner that local rules and regulations are
enforced.
(2) Emergency Procedures.
(a) Whenever an emergency related to tobacco products exists in which
the interest of protecting the public health requires that ordinary
procedures be dispensed with,the board of health or its authorized agent,
acting in accordance with the provisions of M.G.L. c. 111, § 30, may,
without notice or hearing, issue an order reciting the existence of the
emergency and requiring that such action be taken as the board of health
deems necessary to meet the emergency. Any person to whom such order
is directed shall comply therewith within the time specified in the order.
Each day's failure to comply with the order shall constitute a separate
offense. Upon compliance with the order and within seven days after the
day the order has been served, he or she may file a written petition in the
office of the board of health requesting a hearing. He or she shall be
granted a hearing as soon as possible, but not later than ten days after the
filing of the petition. The procedures for such hearing shall otherwise
conform with the hearing requirements which would have existed had the
order been issued under non-emergency circumstances.
(b)No provision of this subsection shall be construed as a limitation on
the emergency powers of the Department of Public Health of the
Commonwealth or its Commissioner.
(B) Complaints. Any person who desires to register a complaint pursuant to the
regulation may do so by contacting the Board of Health or its designated agent(s) in the
town where the retail establishment is located.
i
M
(C) State Enforcement.
(1) Whenever any Board of Health has failed after a reasonable length of time to
enforce the 105 CMR 665.000 the Commissioner of Public Health of the
Commonwealth or his or her designated representative may act for the
Commonwealth in any way that the local board of health is authorized to act to
effect compliance.
(2) Upon the determination by the federal Food and Drug Administration or the
federal Centers for Disease Control and Prevention or other regulatory authority
that an electronic nicotine delivery system has been shown by substantial
epidemiologic, laboratory, or other evidence to be the cause of an imminent
danger to public health, the Commissioner of Public Health may place a ban or
restriction on the sale of such electronic nicotine delivery system.
(D) Service of Orders
(1) Unless otherwise stated herein, orders issued under the provisions of 105
CMR 665.000 shall be served on all persons responsible for the violation of such
regulation.
(2) These orders shall be served in the following manner:
(a)personally,by any person authorized to serve civil process, or
(b)by any person authorized to serve civil process by leaving a copy of
the order at his last and usual place of abode, or
(c)by sending him a copy of the order by registered or certified mail,
return receipt requested, if he is within the Commonwealth, or
(d) if his last and usual place of abode is unknown or outside the
Commonwealth,by posting a copy of the order in a conspicuous place on
or about the premises and by advertising it for at least three out of five
consecutive days in one or more newspapers of general circulation within
the municipality wherein the building or premises affected is situated.
(E) Hearings
(1) Procedure for Requesting and Holding Hearing. Unless otherwise specified
herein, the person or persons to whom any order has been served pursuant to any
section of 105 CMR 665.000 may request a hearing before the Board of Health or
the Department, as applicable, by filing with the Board of Health or the
Department, as applicable, within seven days after the day the order was served, a
written petition requesting a hearing on the matter. Upon receipt of such petition,
the Board of Health or the Department, as applicable, shall set a time and place
for such hearing and shall inform the petitioner thereof in writing. The hearing
shall be commenced not later than 30 days after the day on which the order was
served. The Board of Health or the Department, as applicable,upon application of
the petitioner, may postpone the date of hearing for a reasonable time beyond
such 30-day period if in the judgment of the Board of Health or the Department,
as applicable, the petitioner has submitted a good and sufficient reason for such
postponement.
(2) Hearing of Petitioner. At the hearing the petitioner shall be given an
opportunity to be heard and to show why the order should be modified or
withdrawn.
(3) Procedure by the Board After Hearing. After the hearing the Board of Health
or the Department, as applicable, shall sustain,modify, or withdraw the order and
shall inform the petitioner in writing of its decision. If the Board of Health or the
Department, as applicable, sustains or modifies the order, it shall be carried out
within the time period allotted in the original order or in the modification.
(4) Public Record. Every notice, order, or other record prepared by the Board of
Health or the Department, as applicable, connection with the hearing shall be
entered as a matter of public record in the office of the clerk of the city or town,
or in the office of the Board of Health or the Department, as applicable.
(5) Hearing Petition not Submitted or Sustaining of Order. If a written petition
for a hearing is not filed with the board of health within seven days after the day
an order has been served or if after a hearing the order has been sustained in any
part, each day's failure to comply with the order as issued or modified shall
constitute an additional offense.
(F) Judicial Appeals. Any person aggrieved by the final decision of the Board of Health or the
Department, as applicable,with respect to any order or other action taken with respect to 105
CMR 665.000 may seek relief therefrom in any court of competent jurisdiction, as provided by
the laws of this Commonwealth.
665.060: Severability
If any provision of 105 CMR 665.000 is declared invalid or unenforceable,the other provisions
shall not be affected thereby but shall continue in full force and effect.
REGULATORY AUTHORITY: St. 2018, c. 157, §§17 through 19; MGL c. 111, § 23 9; and
MGL c. 270, §§ 6, 7, and 27 through 29.
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Article 8 . 23
Tobacco Control
ARTICLE 8 . 23
TOBACCO CONTROL
SECTION 8 . 23 . 1 - PURPOSE
In order to protect the health, safety and welfare of the
public, including but not limited to its younger population, by
restricting the sale of and public exposure to tobacco and e-
cigarette products known to be related to various and serious
health conditions such as cancer, this by-law shall limit and
restrict the sale of and public exposure to tobacco and e-
cigarette products within the Town of Brookline .
SECTION 8 . 23 . 2 - DEFINITIONS
a . Tobacco - Any product containing, made, or derived from
tobacco that is intended for human consumption, whether smoked,
chewed, absorbed, dissolved, inhaled, snorted, sniffed, or
ingested by any other means, including, but not limited to :
cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco
or snuff. "Tobacco" does not include any product that has been
approved by the United States Food and Drug Administration
either as a tobacco use cessation product or for other medical
purposes and which is being marketed and sold or prescribed
solely for the approved purpose .
b . E-Cigarette - Any electronic nicotine delivery product
composed of a mouthpiece, heating 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, with or without nicotine . This term shall include such
devices whether they are manufactured as e-cigarettes, e-cigars,
e-pipes, hookah pens, or under any other product name .
C . Smoking - Lighting of, or having in one ' s possession any
lighted cigarette, cigar, pipe or other tobacco product or non-
tobacco product designed to be combusted and inhaled. The
activation of or inhalation of vapor from an e-cigarette shall
be considered smoking under this by-law.
d. Tobacco Vending Machine - A mechanical or electrical device
which dispenses tobacco or e-cigarette products by self-service,
with or without assistance by a clerk or operator .
e . Self-Service Display - Any display from which customers may
select a tobacco or e-cigarette products without assistance from
an employee or store personnel .
f . Minor - A person under twenty-one years of age .
g. Employee - An individual who performs services for an
employer.
h . Employer - An individual, partnership, association,
corporation, trust or other organized group of individuals that
utilizes the services of one (1) or more employees .
i . Workplace - An indoor area, structure or facility or a
portion thereof, at which one or more employees perform a
service for compensation for the employer, other enclosed spaces
rented to or otherwise used by the public; where the employer
has the right or authority to exercise control over the space .
j . Food Service Establishment - An establishment having one or
more seats at which food is served to the public.
k. 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 Health under M.G. L. c . 112 . Health
care institution includes hospitals, clinics, health centers,
pharmacies, drug stores and doctors' and dentists' offices .
1 . Entity - any single individual, group of individuals,
corporation, partnership, institution, employer, association,
firm or any other legal entity whether public or private .
M. Educational Institution - any public or private college,
normal school, professional school, scientific or technical
institution, university or other institution furnishing a
program of higher education.
n . Retail Establishment - any store that sells goods or
articles of personal services to the public .
o . 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 .
P . Characterizing flavor - 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 e-cigarette products 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 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 .
q. Component part - Any element of a tobacco or e-cigarette
products, including, but not limited to, the tobacco, filter and
paper, but not including any constituent .
r . Constituent - Any ingredient, substance, chemical or
compound, other than tobacco, water or reconstituted tobacco
sheet, that is added by the manufacturer to a tobacco or e-
cigarette products during the processing, manufacturing or
packaging of the tobacco or e-cigarette products . Such term
shall include a smoke constituent .
S . Distinguishable - Perceivable by either the sense of smell
or taste .
t . Smoke Constituent : Any chemical or chemical compound in
mainstream or sidestream tobacco smoke that either transfers
from any component of the tobacco or e-cigarette product to the
smoke or that is formed by the combustion or heating of tobacco,
additives or other component of the tobacco or e-cigarette
product .
U. Flavored tobacco or e-cigarette product - Any tobacco
product or e-cigarette 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 or e-cigarette products, or by any
person authorized or permitted by the manufacturer to make or
disseminate public statements concerning such tobacco or e-
cigarette products, that such tobacco or e-cigarette products
has or produces a characterizing flavor shall constitute
presumptive evidence that the tobacco or e-cigarette products is
a flavored tobacco or e-cigarette products .
V. Retail tobacco store : An establishment that is not
required to possess a retail food permit whose primary purpose
is to sell or offer for sale but not for resale, tobacco and/or
e-cigarette products and tobacco paraphernalia, in which the
sale of other products is merely incidental, and in which the
entry of persons under the minimum legal sales age is prohibited
at all times, and maintains a valid permit for the retail sale
of tobacco products as required to be issued by the Brookline
Board of Health.
W. 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 .
SECTION 8 . 23 . 3 - REGULATED CONDUCT
a . Public Places
(1) To the extent that the following are not covered by
applicable State laws or regulations, no person shall smoke in
any rooms or interior areas in which the public is permitted.
This includes, but is not limited to, any food service
establishment, health care institution, classroom, lecture hall,
museum, motion picture theater, school, day care facility,
reception area, waiting room, restroom or lavatory, retail
store, bank (including ATMs) , hair salons or barber shops and
meetings of government agencies open to the public .
(2) Taxi/Livery services licensed by the Town of Brookline shall
be provided in smoke-free vehicles . The restriction of smoking
in taxi/livery vehicles applies to drivers as well as
passengers . Vehicles shall be posted in such a manner that their
smoke-free status can be readily determined from the outside of
the vehicle .
(3) Licensed Inns, Hotels, Motels and Lodging Houses in the Town
of Brookline must provide smoke-free common areas . Licensed
Inns, Hotels and Motels in the Town of Brookline must designate
1000 of individual dwelling units or rooms as non-smoking.
(4) The use of tobacco or e-cigarette products by minors or
school personnel is prohibited in or upon any public sidewalk or
other public property located within four hundred (400) feet of
Brookline High School grounds . The Commissioner of Public Works
shall erect and maintain signage identifying the locations where
smoking is prohibited under this paragraph (4) . Such signage
shall be erected so as to notify the public of the smoking
prohibition and the areas affected thereby.
b. Workplaces
(1) Smoking in workplaces is prohibited.
(2) Notwithstanding subsection (1) , smoking may be permitted in
private residences; except during such time when the residence
is utilized as part of a business as a group childcare center,
school age child care center, school age day or overnight camp,
or a facility licensed by the department of early education and
care or as a health care related office or facility.
(3) Every establishment in which smoking is permitted pursuant
to this by-law shall designate all positions where the
employee' s presence in an area in which smoking is permitted to
be "smoking positions . " The establishment shall notify every
applicant for employment in a smoking position, in writing, that
the position may cause continuous exposure to secondhand smoke,
which may be hazardous to the employee' s health.
(4) No establishment in which smoking is permitted pursuant to
this by-law may require any employee whose effective date of
employment was on or before November 1, 1994 to accept a
designated smoking position as a condition of continued
employment by the employer.
(5) No establishment in which smoking is permitted pursuant to
this by-law may discharge, refuse to hire, or otherwise
discriminate against any employee or applicant for employment by
reason of such person' s unwillingness to be subjected to
secondhand smoke exposure unless the employee has been hired for
a designated smoking position and has been so notified in
writing at the time of hiring.
(6) It is the intent of this by-law that a designated smoking
position shall not be considered suitable work for purposes of
M.G. L. c. 151A, and that an employee who is required to work in
a smoking position shall have good cause attributable to the
employer for leaving work. c. E-cigarette Usage - Locations
Prohibited (1) In addition to the smoking prohibitions set forth
in this bylaw, the use of e-cigarettes is further prohibited
wherever smoking is prohibited under M. G. L. Chapter 270, Section
22 (the "Smoke-Free Workplace Law") , and in all locations listed
in Section 8 . 23 . 3 of this by-law. The Director of Health and
Human Services and/or their designee (s) shall enforce this
section in accordance with Section 8 . 23 . 6 .
SECTION 8 .23 . 4 - POSTING REQUIREMENTS
Every person having control of a premises where smoking is
prohibited by this by-law, shall conspicuously display on the
premises, including the primary entrance doorways, signs reading
"Smoking Prohibited By Law. " Posting of the international symbol
for "No Smoking" shall be deemed as compliance .
SECTION 8 . 23 . 5 - SALE AND DISTRIBUTION OF TOBACCO PRODUCTS
a. Permit - No Entity otherwise permitted to sell tobacco products
shall sell such products within the Town of Brookline without a
valid tobacco sales permit issued by the Director of Public Health.
Permits must be posted in a manner conspicuous to the public.
Tobacco sales permits shall be renewed annually by June lst, at a
fee set forth in the Department' s Schedule of Fees and Charges .
Effective September 1, 2017 or upon the approval of the Attorney
General if later, the Director of Public Health shall not issue
any new tobacco sales permits to first-time permit applicants with
Rce -businesses not currently licensed. Holders of tobacco sales
permits on the effective date of this section may continue to use
such permits . All such holders must apply for renewal of their
permits according to the procedures of the Department. Those who
fail to apply for renewal in a timely manner will receive written
notification from the Department and then those permits may be
revoked or fines imposed after such procedure as set forth in the
procedures of the Department. Any such action may be appealed to
the Select Board within thirty (30) days . However, applicants who
acquire a business that is the holder of a tobacco sales permit on
the effective date of this section may apply, within sixty (60)
days of such acquisition, for a tobacco sales permit such as that
held by the previous owner of the business, only if the buyer
intends to sell tobacco products and will be operating a
substantially similar business, and subject to rules and
requirements of the Health Department.
b. Prohibition of Tobacco Vending Machines - The sale of tobacco
or e-cigarette products by means of vending machines is
prohibited.
c. Restrictions on the Distribution of Tobacco or e-cigarette
Products - No person, firm, corporation, establishment or agency
shall distribute tobacco or e-cigarette products free of charge
or in connection with a commercial or promotional endeavor
within the Town of Brookline. Such endeavors include, but are
not limited to, product `giveaways", or distribution of a
tobacco or e-cigarette product as an incentive, prize, award or
bonus in a game, contest or tournament involving skill or
chance .
d. Prohibition of Sales - No person, firm, corporation,
establishment, or agency shall sell tobacco or e-cigarette
products to anyone born on or after 1/1/2000 .
e . Self-Service Displays - All self-service displays as defined
by 8 . 23 . 2 (e) are prohibited. All commercial humidors including,
but not limited to walk-in humidors must be locked.
f . Prohibition of the Sale of Tobacco Products and e-cigarettes
by Health Care Institutions - No health care institution located
in the Town of Brookline shall sell or cause to be sold tobacco
or e-cigarette products . Additionally, no retail establishment
that operates or has a health care institution within it, such
as a pharmacy or drug store, shall sell or cause to be sold
tobacco or e-cigarette products .
g. Prohibition of the Sale of Tobacco and e-cigarette Products
by Educational Institutions - No educational institution located
in the Town of Brookline shall sell or cause to be sold tobacco
or e-cigarette products . This includes all educational
institutions as well as any retail establishments that operate
on the property of an educational institution .
h. Required Signage
1 . The owner or other person in charge of an entity
authorized to sell tobacco or e-cigarette products at
retail shall conspicuously post signage provided by the
Town of Brookline that discloses current referral
information about smoking cessation.
2 . The owner or other person in charge of an entity
authorized to sell tobacco or e-cigarette products at
retail shall conspicuously post a sign stating that "The
sale of tobacco or e-cigarette products to someone born on
or after 1/l/2000 is prohibited. " The notice shall be no
smaller than 8 . 5 inches by 11 inches and shall be posted
conspicuously in the retail establishment in such a manner
so that they 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 eight (8) feet from the floor.
i . Tobacco Sales
1 . No Tobacco Product Sales Permit holder shall allow any
employee to sell tobacco or e-cigarette products until such
employee has received a copy of this By-law and federal and
state laws regarding the sale of tobacco and e-cigarette
and signs a statement, a copy of which will be placed on
file in the office of the employer, that they have read the
regulation and applicable state and federal laws .
2 . Identification: Each person selling or distributing
tobacco products, as defined herein, 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 was born prior to 1/1/2000 .
3 . All retail sales of tobacco or e-cigarette products
within the Town of Brookline must be face-to-face between
the seller and the buyer and occur at the permitted
location .
4 . Original Cigar Package Price - All single cigars shall
be sold for no less than two dollars and fifty cents
($2 . 50) . No person shall sell or distribute or cause to be
sold or distributed any original factory-wrapped package of
two or more cigars, unless such package is priced for
retail sale at $5 . 00 or more . This section shall not apply
to 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 Brookline .
5 . No entity shall sell or distribute or cause to be sold
or distributed any flavored tobacco or e-cigarette
products, except in retail tobacco stores .
6 . No entity shall sell or distribute or cause to be sold
or distributed blunt wraps .
SECTION 8 . 23 . 6 - VIOLATIONS AND PENALTIES
a. Any person who violates any provision of this by-law, or who
smokes in any area in which a "Smoking Prohibited By Law" sign,
or its equivalent, is conspicuously displayed, shall be punished
by a fine of $100 for each offense . For a first violation of
this section, and for any subsequent violation, the violator may
be afforded the option of enrolling in a smoking
cessation/education program approved by the Director of Health
and Human Services or their designee (s) . Proof of completion of
such approved program shall be in lieu of the fines set forth in
this Section and in Section 10 . 3 of these By-laws .
b. Any person having control of any premises or place in which
smoking is prohibited who allows a person to smoke or otherwise
violate this bylaw, shall be punished by a fine of $100 for a
first offense, $200 for a second offense, and $300 for a third
or subsequent offense .
c . Employees who violate any provision of Section 8 . 23 . 3 (b)
shall be punished by a fine of $100 per day for each day of such
violation .
d. Any entity violating any other section of this by-law shall
receive a fine of $300 . 00 for each offense .
e . Violations of this by-law may be dealt with in a noncriminal
manner as provided in PART X of the Town by-laws .
f . Each calendar day an entity operates in violation of any
provision of this regulation shall be deemed a separate
violation .
g. No provision, clause or sentence of this section of this
regulation shall be interpreted as prohibiting the Brookline
Health Department or a Town department or Board from suspending,
or revoking any license or permit issued by and within the
jurisdiction of such departments or Board for repeated
violations of this by-law.
SECTION 8 . 23 . 7 - SEVERABILITY
Each provision of this by-law shall be construed as separate to
the extent that if any section, sentence, clause or phrase is
held to be invalid for any reason, the remainder of the by-law
shall continue in full force and effect .
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