[Adopted 7-13-2011; amended
in its entirety 5-2-2018]
Whereas there exists conclusive evidence that tobacco smoke
causes cancer, respiratory and cardiac diseases, negative birth outcomes,
irritations to the eyes, nose and throat [Centers for Disease
Control and Prevention (hereinafter "CDC"), Health Effects of Cigarette
Smoking Fact Sheet, (January 2012)]; whereas among the 15.7%
of students nationwide who currently smoked cigarettes and were aged
less than 18 years, 14.1% usually obtained their own cigarettes by
buying them in a store (i.e., convenience store, supermarket, or discount
store) or gas station during the 30 days before the survey
(CDC, Youth Risk Behavior, Surveillance Summaries. 2009, MMWR 2010:59
(No. SS-55) at 11); 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[1]; whereas the U.S. Department of Health and Human Services
has concluded that nicotine is as addictive as cocaine or heroin (U.S. Department of Health and Human Services. How Tobacco Smoke
Causes Disease: The Biology and Behavioral Basis for Smoking-Attributable
Disease: A Report of the Surgeon General, Atlanta, GA: U.S. Department
of Health and Human Services, Centers for Disease Control and Prevention,
National Center for Chronic Disease Prevention and Health Promotion,
Office on Smoking and Health, 2010) and the Surgeon General
found that nicotine exposure during adolescence, a critical window
for brain development, may have lasting adverse consequences for brain
development[2]; whereas, despite state laws prohibiting the sale of tobacco
products to minors, access by minors to tobacco products is a major
problem; whereas many noncigarette tobacco products, such as cigars
and cigarillos, can be sold in a single "dose;" enjoy a relatively
low tax as compared to cigarettes; are available in fruit, candy and
alcohol flavors; and are popular among youth[3]; whereas sales of flavored little cigars increased by
23% between 2008 and 2010[4]; whereas the Federal Family Smoking Prevention and Tobacco
Control Act (FSPTCA), enacted in 2009, prohibited candy- and fruit-flavored
cigarettes,[5] largely because these flavored products were marketed
to youth and young adults,[6] and younger smokers were more likely to have tried these
products than older smokers;[7] whereas, although the manufacture and distribution of
flavored cigarettes (excluding menthol) is banned by federal law,[8] neither federal nor Massachusetts laws restrict sales
of flavored noncigarette tobacco products, such as cigars, cigarillos,
smokeless tobacco, hookah tobacco, and electronic smoking devices
and the nicotine solutions used in these devices; whereas the U.S.
Food and Drug Administration and the U.S. Surgeon General have stated
that flavored tobacco products are considered to be "starter" products
that help establish smoking habits that can lead to long-term addiction;[9] whereas data from the National Youth Tobacco Survey indicate
that more than 2/5 of U.S. middle and high school smokers report using
flavored little cigars or flavored cigarettes;[10] 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;[11] whereas the U.S. Centers for Disease Control and Prevention
has reported that electronic cigarette use among middle and high school
students doubled from 2011 to 2012;[12]
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;[13] 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[14];
Whereas, according to the CDC, cigarette price increases reduce
the demand for cigarettes and thereby reduce smoking prevalence, cigarette
consumption, and youth initiation of smoking (U.S. Department
of Health and Human Services. Reducing Tobacco Use: A Report of the
Surgeon General. Atlanta, GA: U.S. Department of Health and Human
Services, Centers for Disease Control and Prevention, National Center
for Chronic Disease Prevention and Health Promotion, Office on Smoking
and Health, 2000 at 358);
Whereas the 2012 U.S. Surgeon General's Report on Preventing
Tobacco Use Among Youth and Young Adults reports that in 2005, Ringel,
Wasserman, & Andreyeva (U.S. Department of Health and
Human Services, Nicotine Addiction, Atlanta, GA: U.S. Department of
Health and Human Services. CDC, National Center for Chronic Disease
Prevention and Health Promotion, Office on Smoking and Health, 1988) conducted logistic regression analyses to examine whether increased
cigar prices and state tobacco control policies affected the rate
of cigar use. (U.S. Department of Health and Human Services.
Preventing Tobacco Use Among Youth and Young Adults, Atlanta, GA:
U.S. Department of Health and Human Services. Centers for Disease
Control and Prevention, National Center for Chronic Disease Prevention
and Health Promotion, Office on Smoking and Health, 2012 at 706) Using the 1999 and 2000 iterations of the National Youth Tobacco
Survey, Ringel and colleagues analyzed data from 33,632 adolescent
participants aged nine to 17. They found that increased cigar prices
significantly decreased the probability of male adolescent cigar use
and found that a 10% increase in cigar prices would reduce the sample's
cigar use by 3.4% (Ringel JS, Wasserman J, Andreyeva T, Effects
of Public Policy on Adolescents' Cigar Use: Evidence From the
National Youth Tobacco Survey, 95 Am. J. Pub Health 995-8 (June 1,
2005); whereas, according to the CDC's youth risk behavior
surveillance system, the percentage of high school students in Massachusetts
who reported the use of cigars within the past 30 days went from 11.8%
in 2003 to 14.3% in 2011[15]; whereas survey results show that more youth report that
they have smoked a cigar product when it is mentioned by name than
report that they smoked a cigar in general, indicating that cigar
use among youth is underreported[16]; whereas, in Massachusetts, youth use of all other tobacco
products, including cigars, rose from 13.3% in 2003 to 17.6% in 2009,
and was higher than the rate of current cigarette use (16%) for the
first time in history[17]; whereas research shows that increased cigar prices significantly
decreased the probability of male adolescent cigar use and a 10% increase
in cigar prices would reduce use by 3.4%[18]; whereas nicotine levels in cigars are generally much
higher than nicotine levels in cigarettes [Nat'l Cancer
Institute at the Nat'l Inst. of Health, Questions and Answers
About Cigar Smoking and Cancer (Oct. 27, 2010)];
Whereas commercial roll-your-own (RYO) machines enable loose,
unpackaged tobacco to be poured into a machine and placed into empty,
unpackaged cigarette tubes to be inhaled by individuals who smoke
them. This procedure provides risk of contamination of the tobacco
and unsanitary conditions in the machine and is injurious to public
health; whereas commercial roll-your-own (RYO) machines located in
retail stores enable retailers to sell cigarettes without paying the
federal and state excise taxes that are imposed on conventionally
manufactured cigarettes [RYO FILLING STATION, www.ryofillingstation.com
(Feb. 27, 2012)]. High excise taxes encourage adult smokers
to quit and deter youth from starting [Kenneth E. Warner,
Smoking and Health Implications of a Change in the Federal Cigarettte
Excise Tax, 255 J. AM MED. Ass'N 1028 (1986), Frank J Chaloupka
& Rosalie Liccardo Pacula, The Impact of Price on Youth Tobacco
Use, in 14 SMOKING AND TOBACCO CONTROL MONOGRAPHS: CHANGING ADOLESCENT
SMOKING PREVALENCE 193 (U.S. Dep't Health and Human Services
et al. eds., 2001)]. Therefore, 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 U.S. Department of the Treasury, Alcohol and
Tobacco Tax and Trade Bureau (TTB)[19];
Whereas the sale of tobacco products is incompatible with the
mission of health care institutions because they are detrimental to
the public health and undermine efforts to educate patients on the
safe and effective use of medication;
Whereas educational institutions sell tobacco products to a
younger population, which is particularly at risk for becoming smokers,
and such sale of tobacco products is incompatible with the mission
of educational institutions that educate a younger population about
social, environmental and health risks and harms;
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."[20]
Now, therefore, it is the intention of the Middleton Board of
Health to regulate the access of tobacco products.
[1]
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.
[2]
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.
[3]
CDC (2009), Youth Risk Behavior, Surveillance Summaries (MMWR 2010: 59, 12, note 5). Retrieved from: http:www.cdc.gov/mmwr/pdf/ss/ss5905.pdf.
[4]
Delnevo, C., Flavored Little Cigars memo, September 21, 2011,
from Neilson market scanner data.
[5]
21 U.S.C. § 387g.
[6]
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.
[7]
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.
[8]
21 U.S.C. § 387g
[9]
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.
[10]
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(13)00415-1/abstract.
[11]
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.
[12]
Centers for Disease Control & 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.
[13]
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
[14]
Food and Drug Administration, Summary of Results:
Laboratory Analysis of Electronic Cigarettes Conducted by FDA, available at: http://www.fda.gov/newsevents/publichealthfocus/ucm
173146.htm.
[15]
CDC (2011) Youth Risk Behavior, Surveillance Summaries (MMWR 2012: 87 (No SS-61)). Retireved from: www.cdc.gov; and CDC
(2003), Youth Risk Behavior, Surveillance Summaries (MMWR 2004:53, 54 (No. SS-02)).
[16]
2010 Boston Youth Risk Behavior Study. 16.5% of Boston youth
responded that they had ever smoked a fruit or candy flavored cigar,
cigarillo or little cigar, while 24.1% reported ever smoking a "Black
and Mild" Cigar.
[17]
Commonwealth of Massachusetts, Data Brief, Trends in Youth
Tobacco Use in Massachusetts, 1993-2009. Retrieved from: http://www.mass.gov/Eeohhs2/docs/dph/tobacco_control/adolescent_tobacco_use_youth_trends_1993_2009.pdf.
[18]
Ringel, J., Wasserman, J., & Andreyeva, T. (2005) Effects of Public Policy on Adolescents' Cigar Use: Evidence
from the National Youth Tobacco Survey. American Journal
of Public Health, 95(6), 995-998, doi: 10.2105/AJPH.2003.030411 and
cited in Cigar, Cigarillo and Little Cigar Use among Canadian
Youth: Are We Underestimating the Magnitude of this Problem?, J. Prim. P. 2011, Aug: 32(3-4):161-70. Retrieved from: www.nebi.nim.gov/pubmed/21809109.
[19]
TTB (2011). Statistical Report - Tobacco (2011)
(TTB S 5210-12-2010). Retrieved from: http://www.ttb.gov/statistics/2010/201012tobacco.pdf.
[20]
Druzik et al v. Board of Health of Haverhill, 324 Mass.129
(1949).
This regulation is promulgated pursuant to the authority granted
to the Middleton Board of Health by Massachusetts General Laws Chapter
111, Section 31, that "Boards of Health may make reasonable health
regulations."
For the purpose of this regulation, the following words shall
have the following meanings:
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.
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.
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.
Any roll of tobacco that is wrapped in leaf tobacco or in any substance containing tobacco, with or without a tip or mouthpiece, not otherwise defined as a cigarette under Massachusetts General Law, Chapter 64C, Section 1, Paragraph 1.
Any element of a tobacco product, including, but not limited
to, the tobacco, filter and paper, but not including any 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.
Perceivable by either the sense of smell or taste.
Any public or private college, school, professional school,
scientific or technical institution, university or other institution
furnishing a program of higher education.
Any individual who performs services for an employer.
Any individual, partnership, association, corporation, trust
or other organized group of individuals that uses the services of
one or more employees.
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.
An individual, partnership, association, corporation or trust
or any person or group of persons that provides health care services
and employs health care providers licensed, or subject to licensing,
by the Massachusetts Department of Public Health under M.G.L. c. 112
or a retail establishment that provides pharmaceutical goods and services
and is subject to the provisions of 247 CMR 6.00. Health care institution
includes, but is not limited to, hospitals, clinics, health centers,
pharmacies, drugstores, doctor offices and dentist offices.
The age an individual must be before that individual can
be sold a tobacco product in the municipality.
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.
Any person engaged in the sale or distribution of tobacco
products directly to consumers who applies for and receives a tobacco
products 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.
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.
An establishment which is not required to possess a retail
food permit, whose primary purpose is to sell or offer for sale to
consumers, but not for resale, tobacco products and paraphernalia,
in which the sale of other products is merely incidental, and in which
the entry of persons under the minimum legal sales age is prohibited
at all times, and maintains a valid permit for the retail sale of
tobacco products as required to be issued by the Middleton Board of
Health.
Public or private elementary or secondary schools.
Any display from which customers may select or make a tobacco
product without assistance from an employee or store personnel.
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.
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 Laws Chapter 270, Section 22, to maintain a valid permit to operate a smoking bar issued by the Massachusetts Department of Revenue. "Smoking bar" shall include, but not be limited to, those establishments that are commonly known as "cigar bars" and "hookah bars."
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.
Any automated or mechanical self-service device which, upon
insertion of money, tokens or any other form of payment, dispenses
or makes cigarettes or any other tobacco product.
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 individual'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 Middleton
is 21.
B.
Required signage.
(1)
In conformance with and in addition to Massachusetts General Laws, Chapter 270, Section 7, a copy of Massachusetts General Laws, Chapter 270, Section 6, shall be posted conspicuously by the owner or other person in charge thereof in the shop or other place used to sell tobacco products at retail. The notice shall be provided by the Massachusetts Department of Public Health and made available from the Middleton 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 Middleton 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 at retail shall conspicuously post a sign
stating that "The sale of tobacco products to someone under the minimum
legal sales age of 21 years is prohibited." The owner or other person
in charge of a shop or other place used to sell e-cigarettes at retail
shall conspicuously post a sign stating that "The use of e-cigarettes
at indoor establishments may be prohibited by local law." The notices
shall be no smaller than 8.5" by 11" and shall be posted conspicuously
in the retail establishment or other place in such a manner so that
they may be readily seen by a person standing at or approaching the
cash register. These notices 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
shall verify the age of the purchaser by means of valid government-issued
photographic identification containing the bearer's date of birth
that the purchaser is 21 years old or older. Verification is required
for any person under the age of 40.
D.
All retail sales of tobacco products must be face-to-face between
the seller and the buyer and occur at the permitted location, except
sales inside retail tobacco stores.
A.
No person shall sell or otherwise distribute tobacco products at
retail within the Town of Middleton without first obtaining a tobacco
product sales permit issued annually by the Middleton Board of Health.
Only owners of establishments with a permanent, nonmobile location
in Middleton are eligible to apply for a permit and sell tobacco products
at the specified location in Middleton.
B.
As part of the tobacco product sales permit application process,
the applicant will be provided with the Middleton 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 both state 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 sales 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 Middleton Board of Health annually. All such permits shall be
renewed annually by July 1.
E.
A separate permit is required for each retail establishment selling
tobacco products.
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
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.
Issuance and holding of a tobacco product sales permit shall be conditioned
on an applicant's ongoing compliance with current Massachusetts
Department of Revenue requirements and policies, including, but not
limited to, minimum retail prices of tobacco products.
K.
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.
L.
A tobacco product 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 an existing 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, as defined herein.
M.
Maximum number of tobacco product sales permits. At any given time,
there shall be no more than 17 tobacco product sales permits issued
in the Town of Middleton. 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 45 days of expiration
will be treated as a first-time permit applicant.
A.
No person shall sell or distribute or cause to be sold or distributed
a single cigar.
B.
No person shall sell or distribute or cause to be sold or distributed
any original package of two or more cigars, unless such package is
priced for retail sale at $5 or more.
C.
This section shall not apply to:
(1)
The sale or distribution of any cigar having a retail price of more
than $2.50.
(2)
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 Middleton.
D.
The Middleton 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.
No person shall sell or distribute or cause to be sold or distributed
any flavored tobacco product, except in smoking bars and retail tobacco
stores.
No person or entity shall sell or distribute blunt wraps in
Middleton, except in retail tobacco stores.
No person shall distribute, or cause to be distributed, any
free samples of tobacco products. No means, instruments or devices
that allow for the redemption of tobacco products for free or at a
reduced price below the minimum retail price determined by the Massachusetts
Department of Revenue shall be accepted by any permittee.
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.
Pursuant to 940 CMR 21.04(1)(b), no person shall break or otherwise
open any tobacco product's package to sell or distribute any
number of unpackaged or repackaged tobacco product that is smaller
than the smallest package distributed by the manufacturer for individual
consumer use. Pursuant to 940 CMR 21.05, no person shall sell or distribute
nicotine in a liquid or gel substance in Middleton unless the liquid
or gel product is contained in a child-resistant package that, at
a minimum, meets the standards for special packaging as set forth
in 15 U.S.C. §§ 1471 through 1476 and 16 CFR 1700 et
seq.
All self-service displays of tobacco products are prohibited,
except in retail tobacco stores. All humidors, including, but not
limited to, walk-in humidors, must be locked, except in retail tobacco
stores.
All vending machines containing tobacco products, as defined
herein, are prohibited.
All nonresidential roll-your-own machines are prohibited.
No health care institution located in Middleton shall sell or
cause to be sold tobacco products. No retail establishment that operates
or has a health care institution within it, such as a pharmacy or
drugstore, shall sell or cause to be sold tobacco products, as defined
herein.
No educational institution located in Middleton shall sell or
cause to be sold tobacco products. This includes all educational institutions
as well as any retail establishments that operate on the property
of an educational institution.
A.
It shall be the responsibility of the establishment, permit holder
and/or his or her business agent to ensure compliance with all sections
of this regulation pertaining to his or her distribution of tobacco
products. The violator shall receive:
(1)
In the case of a first violation, a fine of $100.
(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.
(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.
(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 directly to
a consumer while his or her permit is suspended shall be subject to
the suspension of all Board of Health issued permits for 30 consecutive
business days.
D.
The Middleton 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 Middleton Board of Health shall suspend
or revoke the tobacco product sales permit if the Board finds that
a sale to a minor 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
of the tobacco product sales permit. Failure to remove all tobacco
products shall constitute a separate violation of this regulation.
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.
