HomeMy WebLinkAboutTobacco Policy Summary 4/2016TOBACCO POLICY SUMMARY LIST (APRIL 2016)
The policy summaries listed below correspond to the checklists found In both the draft sales regulation and ETS regulation.
DJ Wilson, Mass. Municipal Association, diwilson@mma.ore/617-426-7272 and Cheryl Sbarra, Massachusetts Association of Health
Boards, sbarraPmahb.ore /781-721-0183.
SALES
1. Regulate the Sale of Nicotine Delivery Products (e-cigarettes, etc.) the same as tobacco products and include them in the
definition of "Tobacco Product".
a. Age -restricts the sale to those over 18 (or the local Minimum Legal Sales Age) and treats them like tobacco products,
b. Requires e-cigarette vendors to have a permit and bans sale by vending machine or self-service display.
c. E-cigarette sales are currently completely unregulated by federal law.
d. Public health goal is to reduce youth nicotine addiction through e-cigarette use.
e, 192 cities/towns have enacted this policy.
2. Cessation sign requirement in retail stores.
a. Requires retailers to post state's "Quitline" toll -free number to inform smokers who are trying to quit.
b. Signs are provided free to municipalities from the Mass. Department of Public Health.
c. Public health goal is to remind current smokers that help in quitting is available to them for free.
d. More than 118 cities/towns have enacted this policy.
3. Require single cigars be sold for at least $2.50 and multi -packs of 2 or more cigars for at least $5,00.
a. Massachusetts statistics Indicate that youth buy and smoke single, cheap, flavored cigars more than cigarettes.
b. Costs for cheap, flavored cigars are as low as 50 cents (versus $9+ for a pack of brand -name cigarettes).
c. Public health goal Is to discourage youth from impulse purchases of cheap cigars, leading to nicotine addiction.
d. Peer -reviewed research of this policy enacted in Boston in 2011 Indicates it has been effective.
e. Does not affect premium cigars that are not favored.
f. May increase store revenue as additional dollar amount to reach minimum price is kept by retailer.
g. Boston's health regulation went into effect in February 2012.
h. To date, no data has been provided by retailers or their trade associations of any economic harm to vendors.
1. More than 122 municipalities currently have some form of this policy.
4. No Tobacco Product Sales Permit renewal if outstanding fines exist.
a. Now commonplace in many Massachusetts municipalities, this policy requires retailers to address outstanding penalties
before their permit is renewed. Permits are typically renewed annually.
b. An issue of fairness for those retailers who operate within the law.
S. No Tobacco Product Sales Permit renewal with three illegal sales to minors.
a. This policy "raises the bar" by putting retailers on notice, that If they sell to a minor, as defined in the regulation, three
times in one year, their permit will not be renewed.
b. Few cities and towns perform compliance checks three or more times per year so for a retailer to fall this permit condition
would mean selling tobacco to minors In re -checks specifically prompted by previous compliance check failures.
6. Limit the number of Tobacco Product Sales Permits to be issued.
a. Caps the number of permits to be Issued locally at any one time.
b. Provides conditions for renewal, sale of the permit holder's business and a waiting list if maximum number is reached.
c. Reduces "retailer density", which Is always much higher for tobacco than for liquor.
d. Public health goal is that a reduced retailer density reduces exposure to tobacco by minors.
e. 70 cities and towns have enacted a policy to cap and/or reduce the number of local permits issued.
7. No Tobacco Product Sales Permits to be issued to new retailers within 500 feet of a school.
a. Policy is limited to new retailers only.
b. Provides conditions for permit renewal and sale of the permit holder's business.
c. Public health goal is to reduce tobacco sales and exposure to tobacco by minors near schools.
d. 46 cities and towns have enacted this policy.
8. Limit Flavored "Other Tobacco Products", including E-Cigarettes, to adult -only retail tobacco stores.
a. Expands the 2009 federal FDA regulation that banned flavored cigarettes to all tobacco products.
b. Policy is based on the same rationale used by the federal government that:
1. Flavored products are targeted to youth. (Tobacco industry documents acknowledge this fact.)
Ii. Flavored products can still be sold In certain adult -only establishments where youth cannot see or buy them.
c. Public health goal is to thwart youth nicotine addiction with enticing flavored tobacco products rarely used by adults.
d. Federal court win by Providence, RI legally clears this policy for use In Massachusetts.
e. 54 cities/towns have enacted the same language as found in the Providence city ordinance.
9. Raise the MLSA (Minimum Legal Sales Age) from 18 to 21.
a. The Minimum Legal Sales Age for tobacco sales 1n Massachusetts Is 18. This policy raises the minimum age.
b. The first MA municipality with this policy in effect was Needham in 2005. There have been no lawsuits to date.
c. More recent local policies extend the MLSA to nicotine delivery products such as e-cigarettes.
d. Public health goal Is to delay the legal sale in order to reduce smoking prevalence among young adults.
1. Neuroscience makes it clear that brains are not fully developed until about age 25, which means that an 18-year-old
is not really making an "adult choice."
2. Addiction science makes it clear that the longer one refrains from using an addictive substance, the less chance one
has to become addicted.
3. Research demonstrated positive public health outcomes when the drinking age was increased from 18 to 21.
e. Raising the MLSA also eliminates "legal" high school students buying tobacco for their under -aged peers.
f. More than 107 cities and towns have a MLSA of 21 and 4 a MLSA of 19, New York City Instituted an MLSA of 21 in 2014,
g. The state of Hawaii raised the MLSA to 21,
h. The Massachusetts Senate voted to raise the MLSA to 21 in April 2016, with only 2 senators voting against It.
10. Ban the sale of blunt wraps.
a. Forbids the sale of these tobacco products that are designed as a wrap or hollow tube, are usually highly flavored, usually
cost less than a dollar, and are intended to be filled by tobacco or other substances.
b. Does not affect plain -paper rolling papers.
c. Ban is often supported by police chiefs as this product almost exclusively used for marijuana cigarettes.
d. Boston's 2009 ban was upheld by the Mass. Supreme Judicial Court in 2011 in a lawsuit brought by manufacturers.
e. Public health goal is to (1) reduce nicotine dependence by blunt wrap use and (2) reduce illegal substance use.
f. 127 cities and towns have banned the sale of these products.
11. Ban coupon redemption for all non -cigarette products free and for cigarettes cheaper than state -set minimum price.
a. Long established science -based data demonstrate that increased tobacco prices reduce both youth and adult
consumption and prompt quit attempts.
b. Public health goal is to eliminate free products that encourage new users, especially youth.
c. Federal court win by Providence, RI legally clears this policy for use In Massachusetts.
d. More than 85 cities/towns currently have this policy In place.
12. Ban out -of -package sales.
a. Bans the ability for a retailer to open factory -wrapped product and sell it in smaller quantities or permit sampling.
b. Public health goal is to reduce both sanitary code and Department of Environmental Protection violations (as nicotine is a
hazardous waste when spilled), eliminates smaller, cheaper packaging that may be favored by youth with limited funds.
c. Requires e-cigarette liquid (e-juice) retailers to submit a plan with how they will dispose of nicotine liquid.
d. The Attorney General's regulation bans free sampling of e-cigarette liquids by customers.
13. Ban self-service displays.
a. Self-service displays, where a customer can select a tobacco product without clerk assistance, are banned in stores.
b. Local measures in the last five years have expanded the policy to Include e-cigarettes.
c. Public health goal is to reduce tobacco theft and to require a face-to-face transaction with a store clerk that helps ensure
the purchaser is of legal age to complete the tobacco sale.
d. 223 cities and towns have this policy.
14. Ban vending machines.
a. Vending machines, often unattended by a responsible business owner or clerk, are banned.
b. The 2004 Massachusetts smoke -free workplace law, that banned smoking in restaurants and bars, caused the elimination
of many of these vending machines.
c. Massachusetts Attorney General regulations, coupled with federal law (and without any local policy) permit these
machines ONLY in private clubs that NEVER permit the entry of minors into their premises.
d. Local measures in the last five years have expanded the policy to Include e-cigarettes.
e. Public health goal Is to eliminate an unsupervised method of tobacco sales that encourages youth purchase.
f. 202 cities/towns have enacted this policy.
15. Ban non-residential Roll Your Own Machines.
a. Eliminates a loophole found in federal law that permits "private clubs" to sell cheap cigarettes that violate Massachusetts
state law mandating fire -safe cigarette filters.
b. RYO machines commonly violated state's sanitary code due to their self-service design.
c. Benefits local retailer population from "private clubs" taking away their cigarette sales,
d. Still allows for the sale of RYO machines Intended for home use.
e. Public health goal is to reduce smoking by means of very cheap, unregulated cigarettes.
f. More than 148 cities/towns have enacted this policy.
16. No tobacco product sales in health care institutions, Including pharmacies.
a. Bans tobacco sales in locations where health care services are provided, Including doctor/dentist offices, hospitals, clinics,
eye care providers and pharmacies.
b. Boston first enacted this policy in 2009. To date, there have been no lawsuits.
c. Includes supermarkets and "big box" stores that provide health care services. San Francisco was sued and lost the lawsuit
because they carved out an exemption for supermarkets and "big box" stores.
d. Public health goal is to de -couple tobacco sales from locations that, contrary to the many health consequences of tobacco
use, provide health care services.
e. Businesses covered by this policy can choose to discontinue the sale of tobacco or discontinue the provision of health care
services.
f. 136 cities and towns (representing more than 67% of the state's population) have enacted this policy; over half also
include e-cigarettes in the sales ban.
17, No tobacco product sales in educational institutions, including colleges and universities.
a. Bans tobacco sales in locations where educational services are also provided, including schools, trade schools, colleges
and universities.
b. Boston first enacted this policy in 2009. To date, there have been no lawsuits.
c, Includes retailers whose landlord is a qualifying educational institution.
d. Public health goal is to de -couple tobacco sales from locations that educate, for the most part, a population that is
targeted by the tobacco industry.
e. More than 139 cities and towns have enacted this policy; over half also include e-cigarettes In the sales ban.
18. Fining structure.
a. Most municipalities follow the $100/$200/$300 fining scheme found in the state law that bans sales to minors.
b. Cities and towns can raise these fines beyond $300 but cannot use non -criminal disposition (civil) ticketing for those
higher amounts.
c. State law bars local measures to eliminate these fines completely.
d. A flat $300 fine (or higher amount) for each level of violation is permissible.
19. Toiling (enforcement) period to 24 months or 36 months.
a. Under a 12-month tolling period, it is rare for retailers who are repeat offenders to be assessed higher penalties if the
frequency of compliance checks is low.
b. Retailers that don't sell to minors will see no change with a tolling period increase. The longer tolling period will affect
repeat offenders.
c. Technically, lack of a tolling period means a retailer violating the regulation for a second time, regardless of time lapse
from the first violation, is a repeat offender.
d. Approximately 75 municipalities use 24 months and 45 municipalities use 36 months.
20. Maintain or Double Length of Permit Suspensions.
a. The current sample provides for a 14-day suspension for a second violation and a 60-day suspension for a third or
subsequent violation. This doubles the amounts typically found in current local regulations.
b. The public health rationale is that for most cities and towns, the ban on the sale of tobacco products to minors has been
In place for over a decade and retailers still in non-compliance may be more diligent if faced with higher suspension
periods.
21. Penalty Assessment Protocol.
a. Language determines whether the board of health can subjectively Issue a permit suspension OR must issue a permit
suspension.
b. Using "shall" language requires the municipality to assess a permit suspension for the duration listed in the regulation if a
violation of the regulation did in fact take place.
c. Using "may" language permits the municipality to; (1) assess a permit suspension according to the regulation, (2) vary the
length of the suspension or (3) not issue the suspension at all. Boards using this option should take heed to treat every
violator equally to avoid legal action.
d. Note that this decision only affects permit suspensions as the state law that provides for financial penalties does not
provide for subjective local decision -making.
SECOND-HAND SMOKE
1. Ban Smoking in "Smoking Bars"
a. "Smoking Bar" is the term used In the state's Smoke -Free Workplace Law and Includes both hookah bars and cigar bars.
b. Public health aim is to eliminate involuntary exposure to second-hand smoke and deter tobacco addiction.
c. Second-hand smoke problems arise when this type of smoking business Is housed in a multi -use building.
d. Potential Sanitary Code violations may arise in hookah bars when smoking equipment is shared by multiple customers.
e. Restaurants and bars may complain that these establishments end the local "level playing field" regarding smoking.
f. More than 104 cities and towns have enacted this policy.
2. Ban Smoking in "Retail Tobacco Stores"
a. "Retail Tobacco Store" is the term used In the state's Smoke -Free Workplace Law and includes tobacconists, smoke shops
and vape shops. These stores must not permit anyone under the Minimum Legal Sales Age to enter, and must not have a
retail food permit.
b. Public health aim Is to eliminate involuntary exposure to second-hand smoke and deter tobacco addiction.
c. Second-hand smoke problems arise when this type of smoking business is housed in a multi -use building.
d. Enactment of this policy does not interfere with the business but does require a customer wishing to test a tobacco
product before purchase to do so outside the store.
e. 62 cities and towns have enacted this policy.
3. Require a Smoke -Free Buffer Zone around Municipal Building Entrances
a. Allows for residents to enter and exit municipal buildings without involuntary exposure to second-hand smoke.
b. Usual buffer zone distance Is 15' to 25' depending on the physical layout of municipal buildings.
c. Penalties for municipal employees follow the guidelines found in employee handbooks or union contracts.
d. This policy does not ban the use of e-cigarettes, unless e-cigarettes are Included In the definition of tobacco.
e. Dozens of cities and towns have enacted this policy.
4. Ban Smoking in "Membership Associations"
a. "Membership Association" is the term used in the state's Smoke -Free Workplace Law and includes private clubs,
b. Restaurants and bars may complain that these establishments end the "level playing field" regarding smoking when the
clubs act more like a public bar than a private club.
e. Athol's smoking ban for its private clubs was upheld by the Massachusetts Supreme Judicial Courtin 2006 in a lawsuit
brought by local private clubs.
c. 63 cities and towns have enacted this policy.
5. Ban Smoking in Nursing Homes
a. The state Smoke -Free Workplace Law permits smoking by nursing home residents under certain, narrowly -defined
conditions.
b. Many nursing homes have made the corporate decision to be smoke -free.
c. Public health aim is to protect non-smoking residents, employees, caretakers and visitors from involuntary exposure to
second-hand smoke.
6. Ban Smoking in Hotels, Motels, B&B Rooms
a. Public health aim is to protect hospitality industry workers from Involuntary exposure to second-hand smoke and
subsequent room guests from third -hand tobacco smoke that remains on furniture and carpeting.
b. Many large hotel chains have banned smoking through corporate policy.
c. Common areas, restaurants and banquet halls must be smoke -free by state law.
d. 26 cities and towns, Included Boston, have enacted this policy.
7. Ban Smoking in Outdoor Restaurant/Bar Locations
a. Public health aim is to protect restaurant workers and patrons from involuntary exposure to second-hand smoke.
b. Variations on wording are to ban smoking In locations where wait staff serve customers; to all locations covered by either
the food service permit or liquor license; or anywhere on the property of the establishment.
c. Approximately 55 cities and towns, including Boston, have enacted this policy.
8. Ban smoking In parks, playgrounds, athletic fields and beaches.
a. Public health alms of a smoking ban are to reduce the involuntary exposure to second-hand smoke; protect small children
from picking up used tobacco butts; and reduce tobacco -related litter.
b. Denormalizes the use of tobacco in front of youth, especially while engaged In athletic or healthy endeavors.
c. Signage strategically placed alerts smokers to not smoke and provides a means for non-smokers to ask smokers to refrain
from smoking.
d. Approximately 34 cities/towns ban smoking in parks; 34 cities/towns ban smoking at playgrounds, 36 cities/towns ban
smoking at beaches, 30 citles/towns ban smoking on non -school athletic fields.
9. Ban e-cigarette use wherever smoking is banned.
a. The contents of e-cigarette vapor is unknown as they are unregulated, especially true for homemade "nicotine juice".
b. Both the nicotine solution and the e-cigarette hardware are unregulated so the ingredients in the exhaled vapor are
dlfficult to ascertain.
c. Absent a local prohibition, e-cigarettes can be used wherever smoking is either permitted or banned.
d. Approximately 110 cities and towns, including Boston, have enacted this policy.
Updated 5.2.16