[HISTORY: Adopted by the Board of Health of the Town of Westminster
as indicated in article histories. Amendments noted where applicable.]
GENERAL REFERENCES
Smoking — See Ch. 248.
[Adopted 6-3-2009; amended in its entirety 3-11-2019]
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 the U.S. Department of Health
and Human Services has concluded that nicotine is as addictive as
cocaine or heroin[2] and the Surgeon General found that nicotine exposure during
adolescence, a critical window for brain development, may have lasting
adverse consequences for brain development,[3] and that it is addiction to nicotine that keeps youth
smoking past adolescence;[4]
Whereas a Federal District Court
found that Phillip Morris, RJ Reynolds and other leading cigarette
manufacturers "spent billions of dollars every year on their marketing
activities in order to encourage young people to try and then continue
purchasing their cigarette products in order to provide the replacement
smokers they need to survive" and that these companies were likely
to continue targeting underage smokers;[5]
Whereas more than 80% of all adult
smokers begin smoking before the age of 18, more than 90% do so before
leaving their teens, and more than 3.5 million middle and high school
students smoke;[6]
Whereas 18.1% of current smokers
aged less than 18 years reported that they usually directly purchased
their cigarettes from stores (i.e., convenience store, supermarket,
or discount store) or gas stations, and among 11th grade males this
rate was nearly 30%;[7]
Whereas the Institute of Medicine
(IOM) concludes that raising the minimum age of legal access to tobacco
products to 21 will likely reduce tobacco initiation, particularly
among adolescents 15 to 17, which would improve health across the
lifespan and save lives;[8]
Whereas 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;[9]
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%;[10]
Whereas 59% of high school smokers
in Massachusetts have tried flavored cigarettes or flavored cigars
and 25.6% of them are current flavored tobacco product users; 95.1%
of 12 to 17 year olds who smoked cigars reported smoking cigar brands
that were flavored;[11]
Whereas the Surgeon General found
that exposure to tobacco marketing in stores and price discounting
increase youth smoking;[12]
Whereas the federal Family Smoking
Prevention and Tobacco Control Act (FSPTCA), enacted in 2009, prohibited
candy- and fruit-flavored cigarettes,[13] largely because these flavored products were marketed
to youth and young adults,[14] and younger smokers were more likely to have tried these
products than older smokers,[15] neither federal nor Massachusetts laws restrict sales
of flavored noncigarette tobacco products, such as cigars, cigarillos,
smokeless tobacco, hookah tobacco, and electronic 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;[16]
Whereas the U.S. Surgeon General
recognized in his 2014 report that a complementary strategy to assist
in eradicating tobacco-related death and disease is for local governments
to ban categories of products from retail sale;[17]
Whereas the U.S. Centers for Disease
Control and Prevention has reported that the current use of electronic
cigarettes, a product sold in dozens of flavors that appeal to youth,
among middle and high school students tripled from 2013 to 2014;[18]
Whereas 5.8% of Massachusetts youth
currently use e-cigarettes and 15.9% have tried them;[19]
Whereas the Massachusetts Department
of Environmental Protection has classified liquid nicotine in any
amount as an "acutely hazardous waste";[20]
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;[21]
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 is 10.8% in 2013;[22]
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;[23]
Whereas the sale of tobacco products
is incompatible with the mission of health care institutions because
these products are detrimental to the public health and their presence
in health care institutions undermine efforts to educate patients
on the safe and effective use of medication, including cessation medication;
Whereas educational institutions
sell tobacco products to a younger population, who 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".[24]
Now, therefore it is the intention
of the Westminster 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 (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/.
[3]
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.
[4]
Id. at Executive Summary p. 13. Retrieved
from: http://www.surgeongeneral.gov/library/reports/50-years-of-progress/exec-summary.pdf.
[5]
United States v. Phillip Morris, Inc., RJ
Reynolds Tobacco Co., et al., 449 F.Supp.2d 1 (D.D.C. 2006) at Par.
3301 and Pp. 1605-07.
[6]
SAMHSA, Calculated based on data in 2011 National
Survey on Drug Use and Health and U.S. Department of Health and Human
services (HHA).
[7]
CDC (2013) Youth Risk Behavior, Surveillance
Summaries (MMWR 2014: 63 (No SS-04)). Retrieved from: www.cdc.gov.
[8]
IOM (Institute of Medicine) 2015. Public Health
Implications of Raising the Minimum Age of Legal Access to Tobacco
Products. Washington DC: The National Academies Press, 2015.
[9]
CDC (2009), Youth Risk Behavior, Surveillance
Summaries (MMWR 2010: 59, 12, note 5). Retrieved from: http:www.cdc.gov/mmwr/pdf/ss/ss5905.pdf.
[10]
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.
[11]
Massachusetts Department of Public Health,
2015 Massachusetts Youth Health Survey (MYHS); Delneve CD et al.,
Tob Control, March 2014: Preference for flavored cigar brands among
youth, young adults and adults in the USA.
[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. 508-530, www.surgeongeneral.gov/library/reports/preventing-youth-tobacco-use/full-report.pdf.
[13]
21 U.S.C. § 387g.
[14]
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.
[15]
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.
[16]
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.
[17]
See fn. 3 at p. 85.
[18]
Centers for Disease Control & Prevention.
2015. "Tobacco Use Among Middle and High School Students - United
States, 2011-2014," Morbidity and Mortality Weekly Report (MMWR) 64(14):
381-385.
[19]
Massachusetts Department of Public Health,
2015 Massachusetts Youth Health Survey (MYHS).
[20]
310 CMR 30.136.
[21]
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.
[22]
See fn. 7.
[23]
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%2900415-1/abstract.
[24]
Druzik et al v. Board of Health of Haverhill,
324 Mass. 129 (1949).
This regulation is promulgated pursuant
to the authority granted to the Westminster Board of Health by MGL
c. 111, § 31, which states "Boards of health may make reasonable
health regulations."
For the purpose of this regulation,
the following words shall have the following meanings:
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 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 Westminster Board of Health.
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 regardless of any content.
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 provision of ingredient information or the use of additives
or flavorings that do not contribute to the distinguishable taste
or aroma of the product.
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.
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.
Any card, paper, note, form, statement, ticket or other issue
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.
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.
A bottle or other vessel which contains nicotine in liquid
or gel form, whether or not combined with another substance or substances,
for use in a tobacco product, as defined herein. The term does not
include a container containing nicotine in a cartridge that is sold,
marketed, or intended for use in a tobacco product, as defined herein,
if the cartridge is prefilled and sealed by the manufacturer and not
intended to be opened by the consumer or retailer.
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 state price, and before the application of any discounts or
coupons.
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 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.
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.
Public or private elementary or secondary schools.
Any display from which customers may select a tobacco product,
as defined herein, 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 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."
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 products, as defined herein.
A.
No person shall sell or provide a tobacco
product, as defined herein, to a person under the minimum legal sales
age. The minimum legal sales age in Westminster is 21 in conformance
with state law.
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 Westminster 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. The
owner or other person in charge of a shop or other place used to sell
hand-rolled cigars must display a warning about cigar consumption
in a sign at least 50 square inches pursuant to 940 CMR 22.05(2)(e).
(2)
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 signage provided by the Westminster
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 that rely on vaporization
or aerosolization, as defined herein as "tobacco products," 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 21 in conformance with state law 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 they 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 21 years or older in conformance with state law. 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.
A.
No person shall sell or otherwise distribute
tobacco products, as defined herein, within the Town of Westminster
without first obtaining a tobacco product sales permit issued annually
by the Westminster Board of Health. Only owners of establishments
with a permanent, nonmobile location in Westminster are eligible to
apply for a permit and sell tobacco products, as defined herein, at
the specified location in Westminster.
B.
As part of the tobacco product sales permit
application process, the applicant will be provided with the Westminster
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, when required by
state law, before a tobacco product sales permit can be issued.
D.
The fee for a tobacco product sales permit
shall be determined by the Westminster 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.
A tobacco product sales permit is nontransferable.
A new owner of an establishment that sells tobacco products, as defined
herein, 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.
H.
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.
I.
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.
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 the permit
holder has not satisfied any outstanding permit suspensions.
K.
Maximum number of tobacco product sales
permits.
(1)
At any given time, there shall be no more than seven tobacco product sales permits issued in Westminster reduced by the number of permits not renewed pursuant to Subsection K(2). 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 30 days of expiration will be treated as a first-time permit applicant.
(2)
As of January 1, 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 Westminster Board of Health and shall be permanently retired by the Board of Health, and the total allowable number of tobacco product sales permits under Subsection K(1) shall be reduced by the number of the retired permits.
(3)
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.
(4)
Applicants who purchase an existing business
that holds a current tobacco product sales permit at the time of the
sale of said business must 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.
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 factory-wrapped 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 single
cigar having a retail price of $2.50 or more.
(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 Westminster.
D.
The Westminster 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 adult-only retail tobacco stores.
No person or entity shall sell or
distribute blunt wraps in Westminster.
No person shall:
A.
Distribute or cause to be distributed any
free samples of tobacco products, as defined herein;
B.
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; or
C.
Sell a tobacco product, as defined herein,
to consumers through any multi-pack discounts (e.g., "buy-two-get-one-free")
or otherwise provide or distribute to consumers any tobacco product,
as defined herein, without charge or for less than the listed or nondiscounted
price in exchange for the purchase of any other tobacco product.
A.
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.
B.
A retailer of liquid nicotine containers
must comply with the provisions of 310 CMR 30.000, and must provide
the Westminster Board of Health with a written plan for disposal of
said product, including disposal plans for any breakage, spillage
or expiration of the product.
C.
All retailers 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."
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. The only self-service
displays that are permissible pursuant to U.S. FDA and Massachusetts
Attorney General regulations are displays that are located in retail
tobacco stores that ensure that no person younger than the MLSA is
present, or permitted to enter, at any time.
All vending machines containing tobacco
products, as defined herein, are prohibited.
All nonresidential roll-your-own
machines are prohibited.
No educational institution located
in Westminster 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.
The sale or distribution to tobacco
products, as defined herein, must comply with those provisions found
at 940 CMR 21.00 ("Sales and Distribution of Cigarettes, Smokeless
Tobacco Products and Electronic Smoking Devices in Massachusetts").
The use of tobacco, as defined in § 250-3, Definitions, is hereby prohibited in Westminster in locations and establishments covered by M.G.L. c. 270, § 22 (commonly known as the "Smoke-free Workplace Law"), and in additional locations and establishments covered by any regulation or bylaw in Westminster.
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. The violator shall receive:
(1)
In the case of a first violation,
a fine of at least $100, and the tobacco sales permit shall be suspended
for three consecutive business days.
(2)
In the case of a second violation
within 36 months of the date of the current violation, a fine of at
least $200, and the tobacco product sales permit shall be suspended
for 14 consecutive business days.
(3)
In the case of three or more violations
within a thirty-six-month period, a fine of $300, and the tobacco
product sales permit shall be suspended for 30 consecutive business
days.
B.
All tobacco products must be removed from
public view for three-day tobacco sales permit suspension. All tobacco
products shall be removed from the premises for fourteen-day or more
tobacco sales permit suspensions. Failure to remove all tobacco products
shall constitute a separate violation of this regulation.
C.
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.
D.
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.
E.
The Westminster 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 Westminster 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, as defined
herein, shall be removed from the retail establishment upon suspension
or revocation of the tobacco product sales permit. Failure to remove
all tobacco products, as defined herein, shall constitute a separate
violation of this regulation.
Whoever violates any provision of
this regulation may be penalized by the noncriminal method of disposition
as provided in MGL c. 40, § 21D.
Each day any violation exists shall
be deemed to be a separate offense.
Enforcement of this regulation shall
be by the Westminster Board of Health or its designated agent(s).
Any resident who desires to register a complaint pursuant to the regulation
may do so by contacting the Westminster Board of Health or its designated
agent(s), and the Board shall investigate.
If any provision of this regulation
is declared invalid or unenforceable, the other provisions shall not
be affected thereby but shall continue in full force and effect.
This regulation was amended on March
11, 2019 and shall take effect on May 1, 2019.
[Adopted 5-5-2010]
Whereas there exists conclusive evidence that the United States
Department of Health and Human Services has concluded that nicotine
is as addictive as cocaine or heroin; the appeal created by nicotine-delivery
products or e-cigarettes, which contain addictive nicotine, can lead
minors into a nicotine addiction that may result in their daily use
of tobacco; the United States Food and Drug Administration has conducted
laboratory tests finding e-cigarettes contain toxic chemicals and
carcinogens; e-cigarettes seriously compromise current laws governing
indoor smoking bans, including, but not limited to, the Smoke-Free
Workplace Law (MGL c. 270, § 22) and the Education Reform
Act (MGL c. 71, §§ 2A, 37H); and Westminster aims to
protect its youth against the use of nicotine-delivery products and
its residents against the involuntary exposure of vapors from nicotine-delivery
products such as e-cigarettes; now, therefor it is the intention of
the Westminster Board of Health to curtail the access and use of nicotine-delivery
products.
This regulation is promulgated pursuant to the authority granted
to the Westminster Board of Health by MGL c. 111, § 31,
that "Boards of health may make reasonable health regulations."
For the purpose of this regulation, the following words shall
have the following meanings:
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.
Any electronic nicotine-delivery product 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 or
under any other product name.
Any individual who performs services for an employer.
Any individual, partnership, association, corporation, trust
or other organized group of individuals, including Westminster or
any agency thereof, which uses the services of one or more employees.
Any product composed either in whole, or in part, of nicotine
and manufactured for use with nicotine-delivery products, including,
but not limited to, e-cigarettes.
Any individual who is under the age of 18.
Any article or product made wholly or in part of a tobacco
substitute or otherwise containing nicotine that is expected or intended
for human consumption, but not including a tobacco substitute prescribed
by a licensed physician or a product that has been approved by the
United States Food and Drug Administration for sale as a tobacco use
cessation or harm reduction product or for other medical purposes
and which is being marketed and sold solely for that approved purpose.
An individual, employer, employee, retail store manager or
owner, or the owner or operator of any establishment engaged in the
sale or distribution of nicotine-delivery products directly to consumers.
Any display from which customers may select a nicotine-delivery
product without assistance from an employee or store personnel, excluding
vending machines.
Any automated or mechanical self-service device, which upon
insertion of money, tokens or any other form of payment, dispenses
nicotine-delivery products.
A nicotine-delivery product permit is required for any retailer
who sells nicotine-delivery products in Westminster.
A.
No person shall sell or otherwise distribute nicotine-delivery products
at retail within Westminster without first obtaining a nicotine-delivery
product sales permit issued annually by the Westminster Board of Health.
Only owners of establishments with a permanent, nonmobile location
in Westminster are eligible to apply for a permit and sell nicotine-delivery
products at the specified location in Westminster.
B.
As part of the nicotine-delivery product sales permit application
process, the applicant will be provided with the Westminster 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 nicotine-delivery product sales regarding
any applicable state laws regarding the sale of nicotine-delivery
products and this regulation.
C.
The fee for a nicotine-delivery product sales permit shall be determined
by the Westminster Board of Health annually. All such permits shall
be renewed annually by January 1.
D.
A separate permit is required for each retail establishment selling
nicotine-delivery products.
E.
Each nicotine-delivery product sales permit shall be displayed at
the retail establishment in a conspicuous place.
F.
No nicotine-delivery product sales permit holder shall allow any
employee to sell nicotine-delivery products until such employee reads
this regulation and any state laws regarding the sale of nicotine-delivery
products 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 laws.
G.
A nicotine-delivery product sales permit is nontransferable. A new
owner of an establishment that sells nicotine-delivery products must
apply for a new nicotine-delivery product sales permit. No new permit
will be issued unless and until all outstanding penalties incurred
by the previous permit holder are satisfied in full.
H.
Issuance of a nicotine-delivery 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.
I.
A nicotine-delivery 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.
A.
No person shall sell nicotine-delivery products or permit nicotine-delivery
products to be sold to a minor or give nicotine-delivery products
to a minor.
B.
Identification. Each person selling or distributing nicotine-delivery
products shall verify the age of the purchaser by means of 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.
C.
All retail sales of nicotine-delivery products must be face-to-face
between the seller and the buyer.
A.
No person shall distribute, or cause to be distributed, any free
samples of nicotine-delivery products.
B.
No person shall permit any sampling of a nicotine-delivery product.
C.
All self-service displays of nicotine-delivery products are prohibited.
D.
Vending machines selling nicotine-delivery products are prohibited.
The use of e-cigarettes is hereby prohibited in Westminster
in locations and establishments covered by MGL c. 270, § 22
(commonly known as the "Smoke-Free Workplace Law") and in additional
locations and establishments covered by any regulation or bylaw in
Westminster.
The owner or other person in charge of a shop or other place
used to sell nicotine-delivery products at retail shall conspicuously
post a sign stating that "The sale of nicotine-delivery products to
minors under 18 years of age 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 inches by 11 inches 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.
A.
(1)
It shall be the responsibility of the 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 nicotine-delivery
products.
(a)
The violator shall receive:
[1]
In the case of a first violation, a fine of $100 and the nicotine-delivery
product sales permit shall be suspended for three consecutive business
days.
[2]
In the case of a second violation within 18 months of the date
of the current violation, a fine of $200 and the nicotine-delivery
product sales permit shall be suspended for 14 consecutive business
days.
[3]
In the case of three violations within 18 months of the date
of the current violation, a fine of $300 and the nicotine-delivery
product sales permit shall be suspended for 30 consecutive business
days.
[4]
In the case of a fourth violation within 18 months of the date
of the current violation, a fine of $300 and the nicotine-delivery
product sales permit shall be permanently revoked.
(b)
All nicotine-delivery products shall be removed from public
view for three-day nicotine-delivery product sales permit suspensions.
All nicotine-delivery products shall be removed from the premises
for fourteen-day-or-more nicotine-delivery product sales permit suspensions.
Failure to remove all nicotine-delivery products shall constitute
a separate violation of this regulation.
(2)
Refusal to cooperate with inspections pursuant to this regulation
shall result in the suspension of the nicotine-delivery product sales
permit for 30 consecutive business days.
(3)
In addition to the monetary fines set above, any permit holder who
engages in the sale or distribution of nicotine-delivery 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.
(4)
The Westminster Board of Health shall provide notice of the intent
to suspend a tobacco 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 Westminster Board of Health shall suspend the nicotine-delivery
product sales permit if the Board finds that a sale to a minor occurred.
For purposes of such suspensions, 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 nicotine-delivery products shall be removed from
the retail establishment upon suspension of the nicotine-delivery
product sales permit. Failure to remove all nicotine-delivery products
shall constitute a separate violation of this regulation.
B.
Violations of § 250-21.
(1)
It shall be the responsibility of the owner, manager, or other person in control of a building, vehicle or vessel to ensure compliance with § 250-21 of this regulation pertaining to the use of e-cigarettes.
(b)
If an owner, manager or other person in control of a building, vehicle
or vessel violates this regulation repeatedly, demonstrating egregious
noncompliance, the Board of Health may revoke or suspend the license
to operate and shall provide notice of the intent to suspend such
license, 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 owner, manager 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. For purposes of such suspensions,
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.
(2)
An individual or person who violates § 250-21 by using an e-cigarette in a place where smoking is prohibited shall be subject to a penalty of $100.
(3)
Violations may be disposed of by a civil penalty using the noncriminal
method of disposition procedures contained in MGL c. 40, § 21D.
(4)
Each calendar day on which a violation occurs shall be considered
a separate offense.
(5)
This regulation shall be enforced by the Board of Health and its
designees.
(6)
Any person may register a complaint to initiate an investigation
and enforcement with the Board of Health, the local inspection department
or the equivalent.
A.
Enforcement of this regulation shall be by the Board of Health of
Westminster or its designated agent(s).
B.
Any citizen who desires to register a complaint pursuant to the regulation
may do so by contacting the Board of Health of Westminster or its
designated agent(s) and the Board shall investigate.
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.
This regulation was passed on May 5, 2010. This regulation shall
take effect on May 5, 2010.
