Town of Dalton, MA Article III Sale of Tobacco and Nicotine Delivery Products

[Adopted 7-7-2014]

§ 605-19 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;[1]

Whereas among the 15.7% of students nationwide who currently smoke cigarettes and were less than 18 years old, 14.1% usually obtained them by buying them in a store (i.e., convenience store, supermarket, or discount store) or gas station[2];

Whereas nationally in 2009, 72% of high school smokers and 66% of middle school smokers were not asked to show proof of age when purchasing cigarettes[3];

Whereas the United States Department of Health and Human Services has concluded that nicotine is as addictive as cocaine or heroin[4] and the Surgeon General found that nicotine exposure during adolescence, a critical window for brain development, may have lasting adverse consequences for brain development[5];

Whereas despite state laws prohibiting the sale of tobacco products to minors, access by minors to tobacco products is a major public health problem;

Whereas the federal Family Smoking Prevention and Tobacco Control Act (FSPTCA), enacted in 2009, prohibited candy- and fruit-flavored cigarettes,[6] largely because these flavored products were marketed to youth and young adults,[7] and younger smokers were more likely to have tried these products than older smokers;[8]

Whereas although the manufacture and distribution of flavored cigarettes (excluding menthol) is banned by federal law,[9] neither federal nor Massachusetts laws restrict sales of flavored non-cigarette tobacco products, such as cigars, cigarillos, smokeless tobacco, hookah tobacco, and electronic smoking devices and the nicotine solutions used in these devices;

Whereas the United States Food and Drug Administration and the United States 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[10];

Whereas data from the National Youth Tobacco Survey indicate that more than 2/5 of United States middle and high school smokers report using flavored little cigars or flavored cigarettes[11];

Whereas tobacco companies have used flavorings such as mint and wintergreen in smokeless tobacco products as part of a "graduation strategy" to encourage new users to start with products with lower levels of nicotine and progress to products with higher levels of nicotine[12];

Whereas the United States Centers for Disease Control and Prevention has reported that electronic cigarette use among middle and high school students doubled from 2011 to 2012[13];

Whereas nicotine solutions, which are consumed via electronic smoking devices such as electronic cigarettes, are sold in dozens of flavors that appeal to youth, such as cotton candy and bubble gum[14];

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[15];

Whereas nonresidential roll-your-own (RYO) machines located in retail stores enable retailers to sell cigarettes without paying the excise taxes that are imposed on conventionally manufactured cigarettes. High excise taxes encourage adult smokers to quit[16] and high prices deter youth from starting.[17] Inexpensive cigarettes, like those produced from RYO machines, promote the use of tobacco, resulting in a negative impact on public health and increased health care costs, and severely undercut the evidence-based public health benefit of imposing high excise taxes on tobacco;

Whereas it is estimated that 90% of what is being sold as pipe tobacco is actually being used in nonresidential RYO machines. Pipe tobacco shipments went from 11.5 million pounds in 2009 to 22.4 million pounds in 2010. Traditional RYO tobacco shipments dropped from 11.2 million pounds to 5.8 million pounds; and cigarette shipments dropped from 308.6 billion sticks to 292.7 billion sticks according to the December 2010 statistical report released by the United States Department of the Treasury, Alcohol and Tobacco Tax and Trade Bureau (TTB)[18];

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."[19]

Now, therefore it is the intention of the Dalton Board of Health to regulate the sale of tobacco products.

[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 (2009), Youth Risk Behavior, Surveillance Summaries (Morbidity and Mortality Weekly Report (MMWR) 2010:59, 11 (No. SS-55)) Retrieved from: http://www.cdc.gov/HealthyYouth/yrbs/index.htm.

[3] CDC Office of Smoking and Health, National Youth Tobacco Survey, 2009. Analysis by the American Lung Association (ALA), Research and Program Services Division using SPSS software, as reported in "Trends in Tobacco Use," ALA Research and Program Services, Epidemiology and Statistics Unit, July 2011. Retrieved from: www.lung.org/finding-cures/our-research/trend-reports/Tobacco-Trend-Report.pdf.

[4] 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/.

[5] 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.

[6] 21 U.S.C. § 387g.

[7] 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 O. 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, www.surgeongeneral.gov/library/reports/preventing-youth-tobacco-use/full-report.pdf.

[8] 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/library/reports/preventing-youth-tobacco-use/full-report.pdf.

[9] 21 U.S.C. § 387g.

[10] Food and Drug Administration. 2011. Fact Sheet: Flavored Tobacco Products, www.fda.gov/downloads/TobaccoProducts/ProtectingKidsfromTobacco/FlavoredTobacco/UCM183214.pdf; 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/library/reports/preventing-youth-Tobacco-use/full-report.pdf.

[11] 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 of Adolescent Health. [Article in press], www.jahonline.org/article/S1054-139X%2813%2900415-l/abstract.

[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. 539. www.surgeongeneral.gov/library/reports/preventing-youth-tobacco-use/full-report.pdf.

[13] Centers for Disease Control and Prevention. 2013. "Electronic Cigarette Use Among Middle and High School Students — United States, 2011-2012," Morbidity and Mortality Weekly Report (MMWR) 62(35): 729-730.

[14] Cameron JM, Howell DN, White JR, et al. 2013. "Variable and Potentially Fatal Amounts of Nicotine in E-cigarette NicotineSolutions." Tobacco Control. [Electronic publication ahead of print], http://tobaccocontrol.bmj.com/content/early/2013/02/12/tobaccocontrol-2012-050604.full; 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. 549, www.surgeongeneral.gov/library/reports/preventing-youth-tobacco-use/full-report.pdf.

[15] 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.

[16] Eriksen, M., Mackay, J., Ross, H. (2012). The Tobacco Atlas, Fourth Edition, American Cancer Society, Chapter 29, p. 80. Retrieved from: www.TobaccoAtlas.org.

[17] Chaloupka, F. J. & Liccardo Pacula, R., NIH, NCI (2001). The Impact of Price on Youth Tobacco Use, Smoking and Tobacco Control Monograph 14: Changing Adolescent Smoking Prevalence) 193 - 200. Retrieved from: http://dccps.nih.gov/TCRB/monographs/.

[18] TTB (2011). Statistical Report — Tobacco (2011) (TTB S 5210-12-2010). Retrieved from: http://www.ttb.gov/statistics/2010/201012tobacco.pdf.

[19] Druzik et al.v. Board of Health of Haverhill, 324 Mass. 129 (1949).

§ 605-20 Legislative authority.

This regulation is promulgated pursuant to the authority granted to the Dalton Board of Health by MGL c. 111, § 31, that "Boards of Health may make reasonable health regulations."

§ 605-21 Definitions.

For the purpose of this regulation, the following words shall have the following meanings:

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.

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.

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 product or component part thereof, including, but not limited to, tastes or aromas relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb or spice; provided, however, that no tobacco product 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.

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 MGL c. 64C, § 1, Paragraph 1.

COMPONENT PART

Any element of a tobacco product, including, but not limited to, the tobacco, filter and paper, but not including any constituent.

CONSTITUENT

Any ingredient, substance, chemical or compound, other than tobacco, water 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.

DISTINGUISHABLE

Perceivable by either the sense of smell or taste.

EMPLOYEE

Any individual who performs services for an employer.

EMPLOYER

Any individual, partnership, association, corporation, trust or other organized group of individuals that uses the services of one or more employees.

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.

MINIMUM LEGAL SALES AGE (MLSA)

The age an individual must be before that individual can be sold a tobacco product in the municipality.

NONRESIDENTIAL ROLL-YOUR-OWN (RYO) MACHINE

A mechanical device made available for use (including to an individual who produces cigars, cigarettes, smokeless tobacco, pipe tobacco, or roll-your-own tobacco solely for the individual's own personal consumption or use) that is capable of making cigarettes, cigars or other tobacco products. RYO machines located in private homes used for solely personal consumption are not nonresidential RYO machines.

PERMIT HOLDER

Any person engaged in the sale or distribution of tobacco products 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.

PERSON

Any individual, firm, partnership, association, corporation, company or organization of any kind, including, but not limited to, an owner, operator, manager, proprietor or person in charge of any establishment, business or retail store.

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 products and tobacco paraphernalia, in which the sale of other products is merely incidental, and in which the entry of persons under the age of 18 is prohibited at all times, and maintains a valid permit for the retail sale of tobacco products as required to be issued by the Dalton Board of Health.

SELF-SERVICE DISPLAY

Any display from which customers may select a tobacco product or a nicotine delivery product without assistance from an employee or store personnel.

SMOKE CONSTITUENT

Any chemical or chemical compound in mainstream or sidestream tobacco smoke that either transfers from any component of the tobacco product to the smoke or that is formed by the combustion or heating of tobacco, additives or other component of the tobacco product.

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 MGL c. 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."

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, 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.

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 products.

§ 605-22 Tobacco sales to persons under minimum legal sales age prohibited.

A. No person shall sell tobacco products or permit tobacco products, as defined herein, to be sold to a person under the minimum legal sales age; or not being the minor's parent or legal guardian, give tobacco products as defined herein to a person under the minimum legal sales age. The minimum legal sales age in the Town of Dalton is 18.

B. Required signage.

(1) In conformance with and in addition to MGL c. 270, § 7, a copy of MGL c. 270, § 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 provided by the Massachusetts Department of Public Health and made available from the Dalton 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 feet or greater than nine feet from the floor. The owner or other person in charge of a shop or other place used to sell tobacco products at retail shall conspicuously post any additional signs required by the Massachusetts Department of Public Health.

(2) The owner or other person in charge of a shop or other place used to sell tobacco products at retail shall conspicuously post signage provided by the Dalton Board of Health that discloses current referral information about smoking cessation.

(3) The owner or other person in charge of a shop or other place used to sell tobacco products as defined herein at retail shall conspicuously post a sign stating that "The sale of tobacco products, including e-cigarettes, to someone under the minimum legal sales age of 18 years of age is prohibited." The notice shall be no smaller than 8.5 inches by 11 inches and 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 feet or greater than nine feet from the floor.

C. 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 is 18 years old or older. Verification is required for any person under the age of 27.

D. All retail sales of tobacco products as defined herein must be face-to-face between the seller and the buyer and occur at the permitted location.

§ 605-23 Tobacco sales permit required.

A. No person shall sell or otherwise distribute tobacco products as defined herein within the Town of Dalton without first obtaining a tobacco sales permit issued annually by the Dalton Board of Health. Only owners of establishments with a permanent, nonmobile location in Dalton are eligible to apply for a permit and sell tobacco products at the specified location in Dalton.

B. As part of the tobacco sales permit application process, the applicant will be provided with the Dalton 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.

C. Each applicant who sells tobacco products is required to provide proof of a current tobacco retailer license issued by the Massachusetts Department of Revenue before a tobacco product sales permit can be issued.

D. The fee for a tobacco product sales permit shall be determined by the Dalton Board of Health annually.

E. A separate permit is required for each retail establishment selling tobacco products as defined herein.

F. Each tobacco product sales permit shall be displayed at the retail establishment in a conspicuous place.

G. 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.

H. A tobacco product sales permit is nontransferable. A new owner of an establishment that sells tobacco products must apply for a new permit. No new permit will be issued unless and until all outstanding penalties incurred by the previous permit holder are satisfied in full.

I. 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.

J. 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.

K. A tobacco sales permit shall not be issued to any new applicant for a retail location within 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. Applicants who purchase a business that holds a current tobacco product sales permit at the time of the sale of said business may apply, within 60 days of such sale, for the permit held by the seller if the buyer intends to sell tobacco products.

§ 605-24 Free distribution and coupon redemption prohibited.

No person shall distribute, or cause to be distributed, any free samples of tobacco products as defined herein. No means, instruments or devices that allow for the redemption of all tobacco products or nicotine delivery products for free or cigarettes at a price below the minimum retail price determined by the Massachusetts Department of Revenue shall be accepted by any permit holder.

§ 605-25 Out-of-package sales prohibited.

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 20 cigarettes, including single cigarettes.

§ 605-26 Self-service displays prohibited; humidors to be locked.

All self-service displays of tobacco products as defined herein are prohibited. All humidors, including, but not limited to, walk-in humidors must be locked.

§ 605-27 Vending machines prohibited.

All tobacco product, as defined herein, vending machines are prohibited.

§ 605-28 Nonresidential roll-your-own machines prohibited.

All nonresidential roll-your-own machines are prohibited. (This does not include RYO you buy from stores and take home. These are the commercial ones that are creeping up on us.)

§ 605-29 Violations and penalties.

A. It shall be the responsibility of the establishment, permit holder and/or his or her business agent, or retail sales clerk to ensure compliance with all sections of this regulation. The violator shall receive:

(1) A person who violates the provisions of this regulation shall be subject to a fine of $100 for the first offense. Retail clerks employed by the tobacco sales permit holder may also be fined $50 for the first offense.

(2) In the case of a second violation within 24 months of the date of the current violation, a fine of $200 and the tobacco product sales permit shall be suspended for seven consecutive business days. Retail clerks may also be fined $100 for the second offense.

(3) In the case of three or more violations within a twenty-four-month period, a fine of $300 and the tobacco product sales permit shall be suspended for 30 consecutive business days. Clerks employed by the tobacco sales permit holder may also be fined $200 for the third offense.

(4) In the case of further violations or repeated, egregious violations of this regulation within a twenty-four-month period, the Board of Health may revoke a tobacco product sales permit.

B. Refusal to cooperate with inspections pursuant to this regulation shall result in the suspension of the tobacco product sales permit for 30 consecutive business days.

C. 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 30 consecutive business days.

D. The Dalton Board of Health shall provide notice of the intent to suspend or revoke a tobacco product sales permit, which notice shall contain the reasons therefor and establish a time and date for a hearing, which date shall be no earlier than seven 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 therefor in writing. After a hearing, the Dalton Board of Health shall suspend or revoke the tobacco product sales permit if the Board of Health 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 noncriminal 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.

§ 605-30 Noncriminal disposition.

Whoever violates any provision of this regulation may be penalized by the noncriminal method of disposition as provided in MGL c. 40, § 21D, or by filing a criminal complaint at the appropriate venue. Each day any violation exists shall be deemed to be a separate offense.

§ 605-31 Enforcement; complaints.

A. Enforcement of this regulation shall be by the Dalton Board of Health or its designated agent(s).

B. Any resident who desires to register a complaint pursuant to the regulation may do so by contacting the Dalton Board of Health or its designated agent(s) and the Board shall investigate.

§ 605-32 Severability.

If any provision of these regulations is declared invalid or unenforceable, the other provisions shall not be affected thereby but shall continue in full force and effect.

§ 605-33 Effective date.

This regulation shall take effect on July 8, 2014.