HomeMy WebLinkAboutBoard of health Tobacco Regs. 2017Regulation of the [city/town] Board of Health
Restricting the Sale of Tobacco Products
Definitions:
Flavored Tobacco Product: Any tobacco product or component part thereof that contains a constituent that has
or produces a characterizing flavor. A public statement, claim or indicia made or disseminated by the
manufacturer of a tobacco product, or by any person authorized or permitted by the manufacturer to make or
disseminate public statements concerning such tobacco product, that such tobacco product has or produces a
characterizing flavor shall constitute presumptive evidence that the tobacco product is a Flavored Tobacco
Product.
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.
E. Tobacco Product Sales Permit:
9. Maximum Number of Tobacco Product Sales Permits.
a. At any given time, there shall be no more than [number (XX)] Tobacco Product Sales Permits issued in
[city/town] (reduced by the number of permits not renewed pursuant to subsection (b) below)]. No
permit renewal will be denied based on the requirements of this subsection except any permit holder
who has failed to renew his or her permit within thirty (30) days of expiration will be treated as a first-
time permit applicant. New applicants for permits who are applying at a time when the maximum
number of permits have been issued will be placed on a waiting list and will be eligible to apply for a
permit on a "first -come, first -served" basis as issued permits are either not renewed, revoked, or are
returned to the Board of Health.
b. As of [date], any permit not renewed either because a retailer no longer sells tobacco products, as
defined herein, or because a retailer closes the retail business, shall be returned to the [city/town] Board
of Health and shall be permanently retired by the Board of Health and the total allowable number of
Tobacco Product Sales Permits under paragraph (a) shall be reduced by the number of the retired
permits. [NOTE: If this subsection is included, remove the last sentence of section 9(a) AND add to
the end of the first sentence of subsection (a) the following phrase: "...reduced by the number of
permits not renewed pursuant to (b)."]
c. A Tobacco Product Sales Permit shall not be issued to any new applicant for a retail location within five
hundred (500) feet of a public or private elementary or secondary school as measured by a straight line
2018 S d s Rcgulmdon
SAMPLE REGULATION RESTRICTING THE SALE OF TOBACCO PRODUCTS
THIS MODEL REGULATION INCORPORATES THE FOLLOWING:
1. The minimum standards required pursuant to the United States Food and Drug Administration on the sale and
distribution of cigarettes;
2. M.G.L. Chapter 270, Sections 6 and 7 regarding sales to minors and required signage;
3. The Massachusetts Attorney General's Regulations on sales and distribution of tobacco products, including e-
cigarettes and childproof packaging of liquid nicotine containers; and
4. The Department of Energy and Environmental Affairs' regulation regarding hazardous waste disposal
CHECKLIST FOR POLICY DECISIONS (circle decisions):
Items Crossed out are already incorporated into Mansfield Regulations
z— Expanded -definition -At-t9iiflefe-products (.7...:e6t#n.^.delivery produets)
2. b elude rena b)
YES
3. Include minimum cigar package size/price (§F)
YES NO
4. No.-pe...,....it_,e..^newal--if-outstanding-fines- exist -(§n.5)
YESNO
`ir-NoTmail-mewal if lbree so eS to H2d01', A4LS A (cn o)
YES NO
6. Cap and/or reduce number of permits (§E.9)
YES NO
,j��� ,
�!'&C '. No sales within 500 feet of a school (§E.9.c)
YES NO
8. No new permits within _ feet of existing permit (§E.9.d)
YES NO
9. Restrict flavored tobacco products (includes 9 definitions) (§G)
YES NO
40—Mi thmnvAegal-sates-age-for-tobneeo-products(§D)
19 21
11. Ban blunt wraps (§H)
YES NO
12 Ban n.drsd:strtbution-of-tobireco-praduets & redeluption of coupons )--YES
NO
11�^"vu"f-paeliage-Wes (
114. B
YES NO
YE_nc__ NO
fi 1_self -semee<tisplays-(§K)
teal��end,:.g.ufletline5-(§L)
YES urn lcnAtAn�imi
16.-Ba1-N4Ht Resident:t',ZYO-.melt}nes-(§Al)
YES NO
17. Ban-tebaeco product -sates-h"iealtbCil #*ti"o ns (§N)
YES NO
18. Ban tobacco product sales In educational institutions (§O)
YES NO
9. a hang-s"ettuv-mil+ors state law (§Q) OR FLAT FINE
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21. Suspension Period - Maintain or Double Lengths (§Q.l.b and c)
7/30 days 14160 days
22, "Shall" vs. "May" l algnage-for-suspeasions
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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.
d. A Tobacco Product Sales Permit shall not be issued to any new applicant for a retail location 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.
e. 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.
P. Cigar Sales Regulated:
1. No person shall sell or distribute or cause to be sold or distributed a single cigar unless such cigar is priced
for retail sale at two dollars and fifty cents ($2.50) or more.
2. 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 five dollars ($5.00) or more.
3, 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 [city/town].
4. The [city/town] 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.
G. Sale of Flavored Tobacco Products Prohibited:
No person shall sell or distribute or cause to be sold or distributed any flavored tobacco product, except in
smoking bars and adult -only retail tobacco stores.
H, Prohibition of the Sale of Blunt Wraps:
No person or entity shall sell or distribute blunt wraps in [city/town].
T. Out -of -Package Sales:
2. Permit holders who sell Liquid Nicotine Containers must comply with the provisions of 310 CMR
30.000, and must provide the [city/town] Board of Health with a written plan for disposal of said
product, including disposal plans for any breakage, spillage or expiration of the product.
3. 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."
4. No permit holder shall refill a cartridge that is prefilled and sealed by the manufacturer and not intended to
be opened by the consumer or retailer.
O. Prohibition of the Sale of Tobacco Products by Educational Institutions:
No educational institution located in [city/town] shall sell or cause to be sold tobacco products, as defined
herein. This includes all educational institutions as well as any retail establishments that operate on the property
of an educational institution.
P. Incorporation of State Laws and State Regulations:
1. The sale or distribution of tobacco products, as defined herein, must comply with those provisions found at
M.G.L. Ch. 270, §§6, 6A, 7 and M.G.L. Ch. 112, §61A.
2. The sale or distribution of tobacco products, as defined herein, must comply with those provisions found at
940 CMR 21.00 ("Sale and Distribution of Cigarettes, Smokeless Tobacco Products, and Electronic
Smoking Devices in Massachusetts") and 940 CMR 22.00 ("Sale and Distribution of Cigars in
Massachusetts").
Q. Violations:
2. Failure 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.
3. In addition to the monetary fines set above, any permit holder who engages in the sale or distribution of
tobacco products 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. Multiple tobacco product sales permit suspensions
shall not be served concurrently.
nepsema
ginve Mo
October 4, 2018
Board of Health
Town of Mansfield Massachusetts
6 Park Row
Mansfield, MA 02048
Dear Members of the Board of Health -
My name is Jonathan Shaer and I am the Executive Director of the New England Convenience
Store & Energy Marketers Association (NECSEMA). NECSEMA represents the interests of
convenience retailers in Massachusetts and other New England states. Our membership consists
of single -site and chain convenience retailers, wholesale motor fuels distributors and the
businesses which supply them. C-stores provide valuable, often unheralded, services to your
community. They carry the staple products families need, are open during odd hours, and most
importantly, are the in -person gatekeepers for legal, age -restricted products such as flavored
tobacco and nicotine products.
Tonight, you will be considering whether removing certain products such as flavored cigars and e-
cigarettes from convenience stores will meaningfully reduce their use by minors. Retailers stand
with the town, and anti -smoking advocates when it comes to restricting youth access — we are all
partners in this fight. As people who literally stand face to face with the public every day, retailers
take restriction of these products very seriously. They spend significant amounts of time and
money to install age -verification software and train their employees on how to prevent youth
access to certain products. They use the the We Card program, follow state requirements, and
many companies have their own mystery shopper programs. Evidence confirms what they do
works as according to the FDA Compliance Check Inspections of Tobacco Products Retailers,
Mansfield retailers have a 98.5% compliance rate dating back to the January 1, 2016 (one
violation in almost 3 years). In short, retailers are doing exactly what Mansfield asked them to do
when the town issued the license — responsibly retail these products. Mansfield's youth are not
getting flavored products at local c-stores.
The internet and social sources are two ways minors access these flavored products. Removing
them from c-stores does nothing to address this issue. Since 2014, over 125 cities and towns in
Massachusetts have adopted similar flavor restrictions, yet the advocates are unable to cite one
success story. Four years and 125 samples and not even one minor success story. The reason
is c-stores aren't the source for minors, so restrictions on flavors doesn't do anything to combat the
internet or friends/family. Furthermore, reasonable people would agree education and cessation
programs work. Shamefully, Massachusetts collected $884,000,000 in FY18 in tobacco related tax
revenue, but only distributed $3,718,862 for tobacco control programs (.0042%). Doesn't it make
sense to lobby state government to distribute more to these important programs before cities and
towns point the finger at retailers?
1044 Central Street, Suite 203
Stoughton, MA 02072
(781) 297 — 9600
Page 2
As I stated earlier, tonight you will be considering whether removing certain products such as
flavored cigars and e-cigarettes from convenience stores will meaningfully reduce their use by
minors. Tonight's hearing is not a referendum on if these products are good or bad, useful or
useless, or should be legal or illegal. I mention this because I have participated in dozens of
hearings like these, and I've seen the advocates attempt to frighten boards with stories of alleged
deceptive practices by manufacturers, complicated names of chemicals, high rates of usage by
minors, etc. Whether you choose to believe these points is not germane to the question at hand
which is will a restriction approach work? Considering the first towns to adopt restrictions did so
over 4 years ago and can't show empirical evidence of it working, I would ask the board to consider
alternatives which may have a better chance of success.
I am willing to meet with your board, Tobacco Control and any other stakeholder to discuss some
of these alternatives. We share the same goal of protecting minors from accessing age -restricted
products, however we vehemently oppose pulling these products from our stores to do so. Please
don't punish retailers for doing a good job, especially when it can't be shown they are part of the
problem.
Thank you for your consideration, and I am always available if you'd like to discuss this matter
further.
Regards,
Jonathan Shaer
Executive Director
ionna,necsema.net
781-297-9600 x3
Municipal Tobacco Control Technical Assistance Program
Donald J. Wilson, Director
c/o Massachusetts Municipal Association
One Winthrop Square
Boston, Massachusetts 02110
(617)426-7272
FAX (617) 695-1314
djxi,ilson@iiiina.org
nuna.org
r� TOBACCO POLICY SUMMARY LIST
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1. Regulate the Sale of Nicotine Delivery Products (e-cigarettes, etc.) the same a( tobacco products and include them in the
definition of "Tobacco Product".
a. Age -restricts the sale to those over 18 (or the local MLSA) 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 and state law.
d. Public health goal is to reduce youth nicotine addiction through e-cigarette use.
e. 218 cities/towns have enacted this policy.
2. Cessation sign requirement in retail stores.
a. Requires retailers to post state's "Ctuitline" 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. 156 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. Preliminary research of this policy enacted in Boston in 2011 indicates it has been effective.
e. Does not affect premium cigars that are not favored by minors.
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. 151 municipalities currently have some form of this policy.
4. 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. 116 titles and towns have enacted a policy to cap and/or reduce the number of local permits issued.
5. 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. 104 cities and towns have enacted this policy.
6. No Tobacco Product Sales Permits to be issued to new retailers within 500 feet of existing Permit Holder
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 the high density of tobacco sales and exposure to tobacco by minors in high commercial
locations or low-income locations often targeted by the tobacco industry.
d. 6 towns have enacted this policy.
7. 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:
I. 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. 126 cities/towns have enacted the same language as found in the Providence city ordinance.
8. 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. 164 cities and towns have banned the sale of these products.
9. 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 reduces both youth and adult
consumption and prompts 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 policyfor use in Massachusetts.
d. Approximately 100 cities/towns currently have this policy in place.
10. No tobacco product sales in health care institutions, including pharmacies. — IN NEW STATE LAW
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. 169 cities and towns have enacted this policy, over 60% also include e-cigarettes in the sales ban.
11. 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. 165 cities and towns have enacted this policy, over half also include e-cigarettes in the sales ban.
10/3/2018 Where are kids getting JUUL? I Truth Initiative
a
i
truth initiative
Qij INSPIRING TOBACCO -FREE LIVES
s
he e-cigarette JUUL is marketed as a smoking alternative for adults, but has been making
headlines and prompting crackdowns from the Food and Drug Administration for the large
number of kids who use the product.
The popularity of JUUL among youth has helped the product capture more than half of the entire e-
cigarette market share in just two years. Many are attributing the product's rise to its sleek design
that could be mistaken for a flash drive — which makes it easy to disguise — and array of available
youth -appealing flavors, such as fruit medley, mango, cool cucumber and creme brulee.
By law, people under the age of 18 (or 21 in some areas) should not be able to purchase any tobacco
products, including JUUL. So, how are so many young people getting their hands on JUUL? Truth
Initiative® surveyed a national sample of more than 1,000 12- to 17-year-olds in April 2018 to find
out.
https://truthinitia(ive.org/news/where-arc-kids-getting-juul 113
10/3/2018 Where are kids getting JUM I Truth Initiative
Youth who had used JUUL in the past 30 days reported that they got the product in one or more of
these ways:
1. Physical retail locations: The most common way youth got JUUL is through physical retail
locations. Nearly three quarters — 74 percent — of youth said that they obtained JUUL at a store
or retail outlet. In recent weeks, the FDA issued warning letters to retailers, including gas
stations, convenience stores and vape shops, for selling the product to minors. The letters
warned establishments that an FDA inspector observed a clerk selling the device to a minor, and
that "failure to correct these violations may lead to federal enforcement actions, including
monetary penalties."
2. Social sources: Just over half — 52 percent — reported that they received JUUL from a social
source, such as a friend or family member.
ht(ps:/ltruthinitiative,org/news/where-are-kids-getting-jutd 2/3
10/3/2018 Where are kids getting JUUL I Truth Initiative
3. Online: Although the internet was not the most common way youth obtained JUUL — only 6
percent reported that they received the product through an online transaction — nearly all
youth who tried to buy the product online were successful. Among those who attempted an
online transaction, 89 percent succeeded. When the FDA issued its first warning letters about
JUUL to retailers, it also announced that it contacted eBay to express concerns about JUUL
product listings. "We're thankful for eBay's swift action to remove the listings and voluntarily
implement new measures to prevent new listings from being posted to the web retailer's site,"
FDA Commissioner Scott Gottlieb said in a statement. However, some JUUL products are still
available on eBay.
The FDA crackdown on JUUL also includes asking the maker, JUUL Labs, to turn over documents
related to marketing, health effects and use among youth. While recent FDA action is encouraging,
problems with tobacco products like JUUL won't be addressed until the FDA fully regulates e-
cigarettes and establishes a strong pre -market review process to prevent these kinds of products
from being sold in the first place.
Truth Initiative and five other public health and medical groups called on the FDA to take action on
JUUL in April. The groups specified five actions, including removing certain JUUL flavors, suspending
internet sales and prohibiting branded merchandise.
A Truth Initiative study published in Tobacco Control underscores the problem with youth use of
JUUL. It found that 63 percent of young JUUL users did not know that the product always contains
the addictive chemical nicotine, and that many reported that use of this product is called "JUULing,"
indicating that this product is so distinctive, it is perceived as its own category.
htlps:!/Wlhinirialive.orghtews/wlrere-are-kids-getting-juul 3/3
12 A'
AMENDMENTS TO STATE TOBACCO LAWS
AS A RESULT OF THE "OMNIBUS" LAW PASSED BY THE LEGISLATURE
SUMMARY
The new law amends many sections of current laws relative to tobacco. This memorandum
addresses these amendments as they affect the Statewide Smoke -free Workplace Law
(Massachusetts General Law Chapter 270, Section 22) and laws relative to tobacco sales.
AMENDMENTS TO THE STATEWIDE SMOKEFREE WORKPLACE LAW
1. Inclusion of e-cigarettes/vaping products into the Smoke -Free Workplace Law
The new law changes the definition of "smoking" or "smoke" to include electronic cigarettes,
other similar products and any products "that rely on vaporization or aerosolization." This
means that vaping is now banned in locations that have been smoke -free since the initial
smoke -free workplace law went into effect in 2004. The new definition of smoking no longer
has the phrase "or non -tobacco product designed to be combusted and inhaled." This change
excludes marijuana or any type of herbal cigarette that does not contain tobacco. The original
definition of smoking included marijuana because it is a "non -tobacco product designed to be
combusted or inhaled."
Municipal Action
Because the state law is not preemptive, municipalities can continue to include "or non -tobacco
product designed to be combusted and inhaled" in their local regulation. If they have not
already done so, they may amend their definition to include "the use of electronic cigarettes,
electronic cigars, electronic pipes or other similar products that rely on vaporization or
aerosolization."
Even if a municipality does not add electronic products to its local regulation, the smoke -free
workplace law permits local boards of health to enforce the state law.
2. Nursing Homes
The use of electron ic/vapi ng products is now prohibited in nursing homes, with a limited
exemption for certain residential areas upon application to the local board of health.
Municipal Action
Because the law is not preemptive, municipalities may prohibit smoking/vaping in nursing
homes.
3. Schools and School Grounds
The new law amends the Education Reform Act to include prohibiting the use of e-cigarettes
and other vaping products on private school and public and private vocational school grounds
and facilities, as well as on buses of a public and private primary or secondary school and
vocational school, and at all school -sponsored events. While the MA Smoke -Free Workplace
Law now prohibits smoking and vaping in all enclosed workplaces, including public and private
schools, the Education Reform Act also includes outdoor spaces such as school grounds.
Municipal Action
Each school committee is charged with establishing a policy regarding violations.
AMENDMENTS TO TOBACCO SALES
1. Definition of Tobacco Product
The "Tobacco Product" definition has been expanded to include a product made or derived
from tobacco or nicotine, including:
a. Conventional tobacco products;
b. Electronic cigarettes, e-cigars, e-pipes, e-nicotine delivery systems or other
similar products that rely on vaporization or aerosolization; and
c. Components, parts, accessories of a tobacco product.
The definition exempts U.S. FDA -approved cessation products. However, it does not include
"no -nicotine" products even though the Attorney General includes electronic products
"regardless of nicotine content" in her regulations relative to electronic tobacco products.
Municipal Action
The expanded tobacco product definition in the new state law will subject vaping product
vendors to the same conditions placed on traditional tobacco product vendors. 126
municipalities have incorporated the above -described AG regulation to include alleged no -
nicotine products.
2. Increases Minimum Legal Sales Age to 21
The new sales law provides that no person shall sell or provide a tobacco product to a person
who is under 21 years of age. However, it exempts anyone born before December 31, 2000.
This means that anyone who turns eighteen (18) by or on December 30, 2018, is exempt from
the law and may continue to be sold tobacco.
Municipal Action
If a city or town has enacted a local regulation that raises the minimum legal sales age to 21 and
the local regulation is in effect on or before December 30, 2018, then the exemption for anyone
born before December 31, 2000 does not apply. This means that 18, 19 and 20-year olds are
subject to the local regulation. If a municipality does not have a local regulation in effect by
December 30, 2018, then the municipality is preempted (prevented) from enacting such a
regulation and must continue to permit the sale of tobacco to anyone born before December
31, 2000. (Keep in mind that at one point, everyone born before December 31, 2000 will be 21).
3. Fining Structure
The fining scheme remains $100 for a first violation, $200 for a second and $300 for third or
subsequent violations.
Municipal Action
This three-tier fining scheme represents a "floor" for cities and towns. Municipal measures may
have higher, but not lower, fine amounts. In addition, local regulations provide for permitting
and suspensions and possible revocation of permits.
4. Age 21 Signage
Retailers must post a sign provided by the Department of Public Health indicating that the sale
of tobacco product to anyone below the minimum legal sales age is prohibited. The sign will
include the exemption for anyone born before December 31, 2000. There are already signs
available for those municipalities that have or will increase their minimum sales age to 21 on or
before December 30, 2018.
Municipal Action
New signage will be available for ordering from the state's clearinghouse by December 2018 at:
http://massclearinghouse.ehs.state.ma.us/category/TOB.html
5. No Exemption for Parents and Guardians
The new law removes the exemption that permitted parents and guardians by buy or give
tobacco products to their children.
Municipal Action
The exemption for parents and guardians in local regulations is no longer legal. It does not
need to be removed but it cannot be enforced. When a municipality is considering other
regulatory policies, it can be removed at that time. It will be removed from the sample tobacco
sales template.
6. No Sale of Tobacco in Health Care Institutions
This is a new section of state law. It prohibits the sale of tobacco product sales, including
vaping products at Health Care Institutions. "Health Care Institutions" are those entities subject
to state licensing under MGL Ch. 112, including but not limited to, hospitals, clinics and
pharmacies. Supermarkets that have a pharmacy are included.
The law exempts locations that only sell optical, hearing aid and/or audiology products/services
that are not subject to regulation by the state's "board of registration in pharmacy."
Municipal Action
Cities and towns may ban the sale of these products in health care institutions, including
pharmacies. 171 cities and towns in Massachusetts have instituted this policy, barring over 800
pharmacies from selling tobacco products. Because the state law is not preemptive,
municipalities can prohibit locations that sell optical, hearing aid and/or audiology
products/services from selling tobacco products.
7. No Free Samples of Tobacco Products
No free samples of tobacco products may be distributed except by adult -only retail tobacco
stores and smoking bars approved by the Department of Revenue.
Municipal Action
Most local regulations ban the distribution of free samples without exception. Since this law is
not preemptive, a complete ban with no exemptions is permissible and no action is required.
8. Vending Machines
The "Minimum Legal Sales Age" (MLSA) to sell cigarettes from a vending machine is now 21.
Municipal Action
This law is not preemptive. Municipalities should continue to completely ban vending
machines.
9. On-line Sales
On-line sales include vaping products. The Department of Public Health, in consultation with
the Attorney General and the Department of Revenue may establish regulations for persons
engaged in the sale or shipment of tobacco products to prevent the sale or delivery of tobacco
products to persons under the age of 21.
None required.
Municipal Action
10. Incorporation of Attorney General Regulations
The new state law incorporates the Attorney General's regulations on child -resistant packaging
and liquid nicotine containers as found at 940 CMR 21.00 (M.G.L. Ch. 270 §27.) The regulations
authorize cities and towns to enforce it using the Non -Criminal Disposition (civil) form of
ticketing without town meeting or city council approval. However, the allowable fining
structure is $200, $500 and $1000: The two higher amounts exceed the maximum of $300
permitted by the Non -Criminal Disposition state law. This discrepancy will need to be
addressed.
Municipal Action
Many local regulations incorporate the entire Attorney General Regulations and enforce them
like they enforce the rest of their tobacco sales regulation.
Effective Date of the new state law: December 31, 2018
LOCAL ETS REGULATION CHECKLIST
THIS MODEL REGULATION INCORPORATES THE FOLLOWING:
1. The minimum standards required pursuant to the Massachusetts Smoke -Free
Workplace Law (M.G.L. Chapter 270, Section 22); and
2. An expansion (Section 4(d)) that bans the use of electronic cigarettes wherever the
state law and this regulation applies; and
3. Section 4(c) where cities and towns can add policies that are stricter than the state
law.
CHECKLIST FOR POLICY DECISIONS THAT MAKE THE LOCAL
REGULATION STRICTER THAN STATE LAW (circle decisions):*
BAN SMOKING LOCALLY IN:
1) Smoking Bars (cigar bars and hookah bars)
2) Retail Tobacco Stores (tobacconists and smoke shops)
3) Buffer Zones around municipal building entrances (_ feet)
4) Municipal -owned parks and playgrounds
5) Municipal -owned athletic fields
6) Municipal -owned beaches
7) Membership Associations (private clubs)
i) discussion with BOH especially important
8) Nursing Homes
9) Hotels, Motels, B&B Rooms
10) Outdoor Restaurant/Bar Locations
i) language variations at "Muni List Outdoor Seating.doc"
11) Public Transportation, Bus and Taxi Waiting Areas
ALSO...
12) Expand the smoking ban to include e-cigarettes stated in §4(d)
YES NO
YES NO
YES NO
YES NO
YES NO
YES NO
YES NO
YES NO
YES NO
YES NO
YES NO
* All of these policy decisions should be discussed with the BoH first.
NOTE: Those locations checked YES will be entered
into the draft regulation at Section 4(c).
February 25, 2015
INSTRUCTIONS FOR USE:
This model regulation incorporates the state's Smoke -Free Workplace Law
and provides a format for a municipality to ban smoking in a category where
smoking is currently allowed by the state law.
1) Fill in [city/town], including in the title;
2) If measure is to be a by-law or an ordinance:
i) Search and replace "regulation" with appropriate measure type in
title;
ii) Remove six "board of health" references; and
iii) Edit Authority section (§2) according to footnote
3) Fill in effective date;
4) See "Policy Decisions". These decisions should only be made after
consultation with the board of health.
5) Remove definitions not addressed in policies found in the regulation
TOWN/CITY OF
[Choose one: REGULATION/ORDINANCEBY-LAW]
PROHIBITING SMOKING IN WORKPLACES and PUBLIC PLACES
SECTION 1- PURPOSE
The purpose of this [choose one: regulation/ordinance/by-law] is to protect the health of the
employees and general public in the [city/town of [city/town name].
SECTION 2 - AUTHORITY
This regulation is promulgated under the authority granted to the [city/town name] Board of
Health pursuant to Massachusetts General Laws Chapter 111, Section 31 that "[b]oards of health
may make reasonable health regulations." [This sentence is only applicable to Board of
Health regulations. If enacting an ordinance or by-law, this section can begin with the
following sentence with the word "also" omitted.] It is also promulgated pursuant to
Massachusetts General Laws Chapter 270, Section 220) which states in part that "[n]othing in
this section shall permit smoking in an area in which smoking is or may hereafter be prohibited
by law including, without limitation: any other law or ... health ... regulation. Nothing in this
section shall preempt fwnther limitation of smoking by the commonwealth ... or political
subdivision of the commonwealth."
SECTION 3 - DEFINITIONS
As used in this regulation, the following words shall have the following meanings, unless the
context requires otherwise: [POLICY DECISION: Depending upon what you are listing in
Section 4(c) and 4(d), you may not need all these definitions or you may need additional
definitions (i.e. "membership association" or "nursing home", etc.) These definitions can
be found in Laying a Solid Foar:dation and in M.G.L. Ch. 270, §22 and/or 105 CMR 661.
Delete or add those definitions that are applicable to your document.]
Compensation: money, gratuity, privilege, or benefit received from an employer in return for
work performed or services rendered.
E-Cigarette: Any electronic device, not approved by the United States Food and Drug
Administration, 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 any liquid or solid
nicotine. This term shall include such devices whether they are manufactured as e-cigarettes,
e-cigars, e-pipes, e-hookah or under any other product name.
Employee: an individual or person who performs a service for compensation for an employer at
the employer's workplace, including a contract employee, temporary employee, and independent
contractor who performs a service in the employer's workplace for more than a de minimus
amount of time.
Employer: an individual, person, partnership, association, corporation, trust, organization,
school, college, university or other educational institution or other legal entity, whether public,
quasi -public, private, or non-profit which uses the services of one (1) or more employees at one
(1) or more workplaces, at any one (1) time, including the [city/town of [city/town name].
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.
Outdoor space: an outdoor area, open to the air at all times and cannot be enclosed by a wall or
side covering.
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 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 18 [POLICY DECISION: municipality may have a higher MLSA]
is prohibited at all times, and which maintains a valid permit for the retail sale of tobacco
products as required by the [city/town name] Board of Health.
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.
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 Massachusetts General Law Ch.
270, §22 to maintain a valid permit to operate a smoking bar issued by the Massachusetts
Department of Revenue. "Smoking bar" shall include, but not be limited to, those
establishments that are commonly known as "cigar bars" and "hookah bars".
Workplace: an indoor area, structure or facility or a portion thereof, at which one (1) or more
employees perform a service for compensation for an employer; other enclosed spaces rented to
or otherwise used by the public; and where the employer has the right or authority to exercise
control over the space.
Terms not defined herein shall be defined as set forth in M.G.L. Ch. 270, §22 and/or 105 CMR
661. To the extent any of the definitions herein conflict with M.G.L. Ch. 270, §22 or 105 CMR
661, the definition contained in this regulation shall control.
SECTION 4: SMOKING PROHIBITED
a) It shall be the responsibility of the employer to provide a smoke -free environment for all
employees working in an enclosed workplace as well as those workplaces listed in
subsection (c) below.
b) Smoking is hereby prohibited in [city/town name] in accordance with M.G.L. Ch. 270,
§22 (commonly known as the "Smoke -Free Workplace Law").
e) Pursuant to M.G.L. Ch. 270, §220) smoking is also hereby prohibited in [POLICY
DECISION: your local smoking prohibition(s) that go beyond state law should be
addressed here.]
d) The use of e-cigarettes is prohibited wherever smoking is prohibited per M.G.L. Ch. 270,
§22 and Section 4(c) of this regulation.
SECTION 5: ENFORCEMENT
a) An owner, manager, or other person in control of a building, vehicle or vessel who
violates this section, in a manner other than by smoking in a place where smoking is
prohibited, shall be punished by a fine of:
1. $100 for the first violation;
2. $200 for a second violation occurring within two (2) years of the date of the first
offense; and
3. $300 for a third or subsequent violation occurring within two (2) years of the second
violation.
[POLICY DECISION: The categories listed in §4(c) are outside the state
law and the municipality can choose fines that differ from those found in
the state law that are listed above.]
G!
b) Each calendar day on which a violation occurs shall be considered a separate offense.
c) This [choose one: regulation/ordinance/by-law] shall be enforced by the Board of
Health and its designees.
d) Violations of Section 4(b) shall be disposed of by a civil penalty using the non -criminal
method of disposition procedures contained in Section 21D of Chapter 40 of
Massachusetts General Law without an enabling ordinance or by-law. The disposition of
fines assessed shall be subject to Section 188 of Chapter 111.
e) Violations of Sections 4(a), 4(c) and 4(d) may be disposed of by a civil penalty using the
non -criminal method of disposition procedures contained in Section 21D of Chapter 40 of
Massachusetts General Law.
f) If an owner, manager or other person in control of a building, vehicle or vessel violates
this [choose one: regulation/ordinance/by-law] repeatedly, demonstrating egregious
noncompliance as defined by regulation of the Department of Public Health, the Board of
Health may revoke or suspend any Board of Health -issued permit to operate and shall
send notice of the revocation or suspension to the Department of Public Health.
g) Any person may register a complaint to initiate an investigation and enforcement with the
Board of Health, the local inspection department or the equivalent.
SECTION 6: SEVERABILITY
If any paragraph or provision of this [choose one: regulation/ordinance/by-law] is found to be
illegal or against public policy or unconstitutional, it shall not effect the legality of any remaining
paragraphs or provisions.
SECTION 7: CONFLICT WITH OTHER LAWS OR REGULATIONS
Notwithstanding the provisions of Section 4 of this [choose one: regulation/ordinance/ by-
law], nothing in this [choose one: regulation/ordinance/by-law] shall be deemed to amend or
repeal applicable fire, health or other regulations so as to permit smoking in areas where it is
prohibited by such fire, health or other regulations.
SECTION 8: EFFECTIVE DATE
This [choose one: regulation/ordinance/by-law] shall be effective as of 2017.
PARTICIPATING MUNICIPALITY AGREEMENT
Municipal Tobacco and Public Health Policy Programs RFR#190128
The Board of Health of the Town of Mansfield agrees that our Board of Health will
participate in the proposal for the Municipal Board of Health Tobacco and Public
Health Policy Programs RFR submitted by the City of Fall River Health Department.
This agreement is evidence of our commitment to support the implementation of the
requirements in this RFR if we are funded by the Department of Public Health. We
understand the program requirements and agreeto:
Providing culturally appropriate education about local and state laws and
regulations to workplaces and tobacco retail stores impacted by those laws
and regulations;
® Conducting the requisite inspections to monitor compliance utilizing MTCP
protocol. This includes, but is not limited to, tobacco sales compliance checks,
tobacco retail store inspections and secondhand smoke inspections; and
® Ensuring that penalties prescribed in the laws or regulations are fairly and
consistently enforced against workplaces and tobacco retail stores found to be
in violation of state and local laws;
Board of Health Agent
Name: Amy Donovan -Palmer
Title: Health Agent
Signature and Date:
Board of Health Chair
Name: Michael McClean
Title: Chair, BOH
Signature and Date- /
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