It is well established that tobacco use remains the leading preventable cause of disease and death in the United States and that the addictive effects of nicotine make cessation of smoking once started extremely difficult especially for those who begin smoking as adolescents, as well as posing possible risk to their brain development. It is also established that flavored tobacco products are starter products that help establish smoking habits. The Board of Health therefore has adopted these regulations under the authorities cited in §
311-2 below to promote public health in the Town of Eastham.
This regulation is promulgated pursuant to the authority granted
to the Eastham Board of Health by MGL c. 111, § 31, which
states, "Boards of health may make reasonable health regulations";
105 CMR 665.000 which states, "The provisions of 105 CMR 665.000 shall
not limit the right of an appropriate authority in a city or town
to adopt rules and regulations as may be necessary; provided, however,
that such a rule or regulation shall not conflict with regulations
promulgated by the department [of public health] or state or federal
laws"; MGL c. 112, § 61A, which bans tobacco sales in health
care institutions; and MGL c.111, § 30, authorizing the
use of emergency procedures.
For the purpose of this regulation, the following words shall
have the following meanings:
ADULT-ONLY 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 21 is prohibited at all times, and
that maintains a valid permit for the retail sale of tobacco products
as required to be issued by the Eastham Board of Health.
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, imparted or detectable either prior to or during
consumption of a tobacco product, including, but not limited to, tastes
or aromas relating to any fruit, chocolate, vanilla, honey, candy,
cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb
or spice; provided, however, that no tobacco product shall be determined
to have a characterizing flavor solely because of the provision of
ingredient information or the use of additives or flavorings that
do not contribute to the distinguishable taste or aroma of the product.
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.
COUPON
Any card, paper, note, form, statement, ticket, or other
communication distributed for commercial or promotional purposes to
be later surrendered by the bearer so as to receive an article, service
or accommodation without charge or at a discount price.
EDUCATIONAL INSTITUTION
Any public or private college, school, professional school,
scientific or technical institution, university or other institution
furnishing a program of higher education.
ELECTRONIC NICOTINE DELIVERY SYSTEM
An electronic device, whether for one-time use or reusable,
that can be used to deliver nicotine or another substance to a person
inhaling from the device, including, but not limited to, electronic
cigarettes, electronic cigars, electronic cigarillos, electronic pipes,
vaping pens, hookah pens and other similar devices that rely on vaporization
or aerosolization; provided, however, that "electronic nicotine delivery
system" shall also include any noncombustible liquid or gel that is
manufactured into a finished product for use in such electronic device;
provided further that "electronic nicotine delivery system" shall
also include any component, part or accessory of a device used during
the operation of the device even if the part or accessory was sold
separately; provided further that "electronic nicotine delivery system"
shall not include a product that has been approved by the United States
Food and Drug Administration for the sale of or use as a tobacco cessation
product or for other medical purposes and is marketed and sold or
prescribed exclusively for that approved purpose.
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.
HEALTH CARE INSTITUTION
An individual, partnership, association, corporation or trust
or any person or group of persons that provides health care services
and employs health care providers licensed, or subject to licensing,
by the Massachusetts Department of Public Health under MGL c. 112
or a retail establishment that operates at a health care institution
or has a health care institution located on or within its premises;
provided, however, that a retail establishment that provides optician,
optometric, hearing aid or audiology services but is not subject to
regulation by the Board of Registration in Pharmacy shall not be considered
a health care institution. Health care institutions include, but are
not limited to, hospitals, clinics, health centers, pharmacies, drug
stores, doctor offices, and dentist offices.
LIQUID NICOTINE CONTAINER
A package from which nicotine or other substance in a solution
or other form is accessible through normal and foreseeable use by
a consumer and that is used to hold a soluble nicotine or other substance
in any concentration; provided, however, that "liquid nicotine container"
shall not include a sealed, prefilled and disposable container of
nicotine or other substance in a solution or other form in which the
container is inserted directly into an electronic cigarette, electronic
nicotine delivery system or other similar product if the nicotine
or other substance in the container is inaccessible through customary
or reasonably foreseeable handling or use, including reasonably foreseeable
ingestion or other contact by children.
LISTED OR NONDISCOUNTED PRICE
The higher of the price listed for a tobacco product on its
package or the price listed on any related shelving, posting, advertising
or display at the place where the tobacco product is sold or offered
for sale, plus all applicable taxes if such taxes are not included
in the stated price, and before the application of any discounts or
coupons.
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 ESTABLISHMENT
Any establishment that is a smoking bar, an adult-only retail
tobacco store or a general merchandise store that sells tobacco.
SELF-SERVICE DISPLAY
Any display from which customers may select a tobacco product,
as defined herein, without assistance from employee or store personnel.
SMOKE CONSTITUENT
Any chemical or chemical compound in mainstream or side stream
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: i) exclusively occupies an enclosed
indoor space and is primarily engaged in the retail sale of tobacco
products for consumption by customers on the premises; ii) derives
revenue from the sale of food, alcohol or other beverages that is
incidental to the sale of a tobacco product and prohibits entry to
a person under 21 years of age; iii) prohibits a food or beverage
not sold directly by the establishment from being consumed on the
premises; iv) maintains a valid permit for the retail sale of a tobacco
product as required to be issued by the appropriate authority in the
Town; and v) maintains a valid permit issued by the Department of
Revenue to operate as a smoking bar.
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 nicotine delivery
systems or any other similar products, regardless of nicotine content,
that rely on vaporization or aerosolization. "Tobacco product" also
not includes any component, part or accessory 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.
TOBACCO PRODUCT FLAVOR ENHANCER
Any product designed, manufactured, produced, marketed, or
sold to produce a characterizing flavor when added to any tobacco
product.
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 or any other tobacco product, as defined herein.
Each person selling or distributing tobacco products or admitting
entrance into a smoking bar or adult-only-retail tobacco store, as
defined herein, shall first verify the age of the purchaser or entrant
is 21 or older by means of a valid government-issued photographic
identification containing the bearer's date of birth proving
that the purchaser is 21 years old or older.
No retail establishment shall sell or distribute blunt wraps
in Eastham.
No person shall accept or redeem, offer to accept, or redeem,
or cause or hire any person to accept or redeem or offer to accept
or redeem any coupon that provides any tobacco product, as defined
herein, without charge or for less than the listed or nondiscounted
price. No retail establishment that is not a retail tobacco store
or smoking bar, or any other establishment, shall distribute or cause
to be distributed a free sample of a tobacco product.
No person shall knowingly sell or provide:
A. A liquid or gel substance containing nicotine, unless the substance
is contained in child-resistant packaging; or
B. A liquid nicotine container unless the container includes child-resistant
packaging as part of its design.
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.
All vending machines containing tobacco products, as defined
herein, are prohibited.
All nonresidential roll-your-own machines are prohibited.
No health care institution as defined herein located in Eastham
shall sell or cause to be sold tobacco products, as defined herein.
No educational institution located in Eastham 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.
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. If inspection reveals a retail establishment,
retailer, and/or his or her business agent does not comply with the
provisions specific to the Eastham Board of Health, the retail establishment
shall be ordered to comply with the violated provision. In addition
to the correction order, the following fines and actions apply against
any person who violates the specific provisions; provided, however,
that such fines and actions related to any violation within a retail
establishment shall apply against the retailer and/or his or her business
agent and not an employee thereof:
A. In the case of a first violation, a fine of $100 shall be imposed.
B. In the case of a second violation within 36 months of the date of
the first violation, a fine of $200 shall be imposed and the tobacco
product sales permit shall be suspended for seven consecutive business
days.
C. In the case of three or more violations within a thirty-six-month
period, a fine of $300 shall be imposed and the tobacco product sales
permit shall be suspended for 30 consecutive business days.
D. In the case of further violations or repeated, egregious violations
of the Eastham-specific provisions of these regulation within a thirty-six-month
period, the Board of Health may revoke a tobacco product sales permit.
E. Refusal to cooperate with inspections related only to the Eastham-specific
provisions of this regulation shall result in the suspension of the
tobacco product sales permit for 30 consecutive business days.
F. In addition to the monetary fines set out 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.
Each day any violation of 105 CMR 665.000 exists shall be deemed
to be a separate offense.
All tobacco products shall be removed from visible display in
the retail establishment upon any suspension from operating as a retail
establishment, or revocation of a tobacco sale permit. Failure to
remove from visual display all tobacco products shall constitute a
separate violation of 105 CMR 665.000.
A retail establishment shall be provided notice of the intent
to suspend or prohibit the sale of tobacco products at or by the retail
establishment. The notice shall contain the reasons therefor and establish
a time and date for a hearing, which date shall not be earlier than
seven days after the date of such notice. The retail establishment,
retailer or his or her business agent shall have an opportunity to
be heard at such hearing and shall be notified of the decision regarding
the retail establishment's prohibition from selling tobacco products
and monetary penalties and the reasons therefor in writing. After
a hearing, the retail establishment may be prohibited from selling
tobacco products upon a finding that a violation of these regulations
for which such prohibition is applicable 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.
After the hearing, the Board of Health shall sustain, modify,
or withdraw the order or notice and shall inform the petitioner, in
writing, of its decision. If the Board of Health sustains or modifies
the order, it shall be carried out within the time period allotted
in the original order or in the modification.
Every notice, order, or other record prepared by the Board of
Health in connection with the hearing shall be entered as a matter
of public record in the office of the Clerk of the Town or in the
office of the Board of Health.
If a written petition for a hearing is not filed with the Board
of Health within seven days after the day an order has been served
or 10 days after a notice has been mailed or if after a hearing the
order has been sustained in any part, each day's failure to comply
with the order as issued or modified shall constitute an additional
violation.
Any person aggrieved by the final decision of the Board of Health
with respect to any order or other action taken may seek relief therefrom
in any court of competent jurisdiction, as provided by the laws of
this commonwealth.
Whenever an emergency related to tobacco products exists in
which the interest of protecting the public health requires that ordinary
procedures be dispensed with, the Board of Health or its authorized
agent, acting in accordance with the provisions of MGL c. 111, § 30,
may, without notice or hearing, issue an order reciting the existence
of the emergency and requiring that such action be taken as the Board
of Health deems necessary to meet the emergency. Any person to whom
such order is directed shall comply therewith within the time specified
in the order; provided, however, that such fines and actions related
to any violation within a retail establishment shall apply against
the retailer and/or his or her business agent and not an employee
thereof. Each day's failure to comply with the order shall constitute
a separate offense. Upon compliance with the order and within seven
days after the day the order has been served, he or she may file a
written petition in the office of the Board of Health requesting a
hearing. He or she shall be granted a hearing as soon as possible,
but not later than 10 days after the filing of the petition. The procedures
for such hearing shall otherwise conform with the hearing requirements
which would have existed had the order been issued under nonemergency
circumstances.
Enforcement of this regulation shall be by the Eastham Board
of Health or its designated agent(s).
Any person who desires to register a complaint pursuant to the
regulation about an establishment within Eastham may do so by contacting
the Eastham Board of Health or its designated agent(s), and the Board
shall investigate.
These provisions are as follows:
A. Sale or distribution of tobacco products by a general retail store
or individual without a tobacco product sales permit. (Sales without
a permit by retail tobacco stores or smoking bars are a 665 violation.)
B. Prohibition of the sale of blunt wraps.
C. Prohibition of self-service displays.
D. Prohibition of vending machines containing tobacco products.
E. Prohibition of nonresidential roll-your-own machines.
F. Prohibition of tobacco sales by health care institutions.
G. Prohibition of tobacco sales by educational institutions.
These regulations are effective on April 3, 2022, by the Board
of Health.