[Adopted 7-7-2014]
Whereas there exists conclusive evidence that tobacco smoking
causes cancer, respiratory and cardiac diseases, negative birth outcomes,
irritations to the eyes, nose and throat;[1]
Whereas among the 15.7% of students nationwide who currently
smoke cigarettes and were less than 18 years old, 14.1% usually obtained
them by buying them in a store (i.e., convenience store, supermarket,
or discount store) or gas station[2];
Whereas nationally in 2009, 72% of high school smokers and 66%
of middle school smokers were not asked to show proof of age when
purchasing cigarettes[3];
Whereas the United States Department of Health and Human Services
has concluded that nicotine is as addictive as cocaine or heroin[4] and the Surgeon General found that nicotine exposure during
adolescence, a critical window for brain development, may have lasting
adverse consequences for brain development[5];
Whereas despite state laws prohibiting the sale of tobacco products
to minors, access by minors to tobacco products is a major public
health problem;
Whereas the federal Family Smoking Prevention and Tobacco Control
Act (FSPTCA), enacted in 2009, prohibited candy- and fruit-flavored
cigarettes,[6] largely because these flavored products were marketed
to youth and young adults,[7] and younger smokers were more likely to have tried these
products than older smokers;[8]
Whereas although the manufacture and distribution of flavored
cigarettes (excluding menthol) is banned by federal law,[9] neither federal nor Massachusetts laws restrict sales
of flavored non-cigarette tobacco products, such as cigars, cigarillos,
smokeless tobacco, hookah tobacco, and electronic smoking devices
and the nicotine solutions used in these devices;
Whereas the United States Food and Drug Administration and the
United States Surgeon General have stated that flavored tobacco products
are considered to be "starter" products that help establish smoking
habits that can lead to long-term addiction[10];
Whereas data from the National Youth Tobacco Survey indicate
that more than 2/5 of United States middle and high school smokers
report using flavored little cigars or flavored cigarettes[11];
Whereas tobacco companies have used flavorings such as mint
and wintergreen in smokeless tobacco products as part of a "graduation
strategy" to encourage new users to start with products with lower
levels of nicotine and progress to products with higher levels of
nicotine[12];
Whereas the United States Centers for Disease Control and Prevention
has reported that electronic cigarette use among middle and high school
students doubled from 2011 to 2012[13];
Whereas nicotine solutions, which are consumed via electronic
smoking devices such as electronic cigarettes, are sold in dozens
of flavors that appeal to youth, such as cotton candy and bubble gum[14];
Whereas in a lab analysis conducted by the FDA, electronic cigarette
cartridges that were labeled as containing no nicotine actually had
low levels of nicotine present in all cartridges tested, except for
one[15];
Whereas nonresidential roll-your-own (RYO) machines located
in retail stores enable retailers to sell cigarettes without paying
the excise taxes that are imposed on conventionally manufactured cigarettes.
High excise taxes encourage adult smokers to quit[16] and high prices deter youth from starting.[17] Inexpensive cigarettes, like those produced from RYO machines,
promote the use of tobacco, resulting in a negative impact on public
health and increased health care costs, and severely undercut the
evidence-based public health benefit of imposing high excise taxes
on tobacco;
Whereas it is estimated that 90% of what is being sold as pipe
tobacco is actually being used in nonresidential RYO machines. Pipe
tobacco shipments went from 11.5 million pounds in 2009 to 22.4 million
pounds in 2010. Traditional RYO tobacco shipments dropped from 11.2
million pounds to 5.8 million pounds; and cigarette shipments dropped
from 308.6 billion sticks to 292.7 billion sticks according to the
December 2010 statistical report released by the United States Department
of the Treasury, Alcohol and Tobacco Tax and Trade Bureau (TTB)[18];
Whereas the Massachusetts Supreme Judicial Court has held that"
. . . [t]he right to engage in business must yield to the paramount
right of government to protect the public health by any rational means."[19]
Now, therefore it is the intention of the Dalton Board of Health
to regulate the sale of tobacco products.
[1]
Center for Disease Control and Prevention, (CDC) (2012), Health
Effects of Cigarette Smoking Fact Sheet. Retrieved from: http://www.cdc.gov/tobacco/data_statistice/fact_sheets/health_effects/effects_cig_smoking/index.htm.
[2]
CDC (2009), Youth Risk Behavior, Surveillance Summaries (Morbidity and Mortality Weekly Report (MMWR) 2010:59, 11 (No. SS-55))
Retrieved from: http://www.cdc.gov/HealthyYouth/yrbs/index.htm.
[3]
CDC Office of Smoking and Health, National Youth Tobacco
Survey, 2009. Analysis by the American Lung Association (ALA),
Research and Program Services Division using SPSS software, as reported
in "Trends in Tobacco Use," ALA Research and Program Services, Epidemiology
and Statistics Unit, July 2011. Retrieved from: www.lung.org/finding-cures/our-research/trend-reports/Tobacco-Trend-Report.pdf.
[4]
CDC (2010), How Tobacco Smoke Causes Disease: The
Biology and Behavioral Basis for Smoking-Attributable Disease. Retrieved from: http://www.cdc.gov/tobacco/data_statistics/sgr/2010/.
[5]
U.S. Department of Health and Human Services. 2014. The Health Consequences of Smoking — 50 Years of Progress:
A Report of the Surgeon General. Atlanta: U.S. National Center
for Chronic Disease Prevention and Health Promotion, Office on Smoking
and Health, p. 122. Retrieved from: http://www.surgeongeneral.gov/library/reports/50-years-of-progress/full-report.pdf.
[6]
21 U.S.C. § 387g.
[7]
Carpenter CM, Wayne GF, Pauly JL, et al. 2005. "New Cigarette
Brands with Flavors that Appeal to Youth: Tobacco Marketing Strategies." Health Affairs. 24(6): 1601-1610; Lewis M and Wackowski
O. 2006. "Dealing with an Innovative Industry: A Look at Flavored
Cigarettes Promoted by Mainstream Brands." American Journal
of Public Health. 96(2): 244-251; Connolly GN. 2004. "Sweet
and Spicy Flavours: New Brands for Minorities and Youth." Tobacco Control. 13(3): 211-212; U.S. Department of Health
and Human Services. 2012. Preventing Tobacco Use Among Youth
and Young Adults: A Report of the Surgeon General. Atlanta:
U.S. National Center for Chronic Disease Prevention and Health Promotion,
Office on Smoking and Health, p. 537, www.surgeongeneral.gov/library/reports/preventing-youth-tobacco-use/full-report.pdf.
[8]
U.S. Department of Health and Human Services. 2012. Preventing Tobacco Use Among Youth and Young Adults: A Report of
the Surgeon General. Atlanta: U.S. National Center for Chronic
Disease Prevention and Health Promotion, Office on Smoking and Health,
p. 539, www.surgeongeneral.gov/library/reports/preventing-youth-tobacco-use/full-report.pdf.
[9]
21 U.S.C. § 387g.
[10]
Food and Drug Administration. 2011. Fact Sheet: Flavored
Tobacco Products, www.fda.gov/downloads/TobaccoProducts/ProtectingKidsfromTobacco/FlavoredTobacco/UCM183214.pdf; U.S. Department of Health and Human Services. 2012. Preventing
Tobacco Use Among Youth and Young Adults: A Report of the Surgeon
General. Atlanta: U.S. National Center for Chronic Disease
Prevention and Health Promotion, Office on Smoking and Health, p.
539, www.surgeongeneral.gov/library/reports/preventing-youth-Tobacco-use/full-report.pdf.
[11]
King BA, Tynan MA, Dube SR, et al. 2013. "Flavored-Little-Cigar
and Flavored-Cigarette Use Among U.S. Middle and High School Students." Journal of Adolescent Health. [Article in press], www.jahonline.org/article/S1054-139X%2813%2900415-l/abstract.
[12]
U.S. Department of Health and Human Services. 2012. Preventing Tobacco Use Among Youth and Young Adults: A Report of
the Surgeon General. Atlanta: U.S. National Center for Chronic
Disease Prevention and Health Promotion, Office on Smoking and Health,
p. 539. www.surgeongeneral.gov/library/reports/preventing-youth-tobacco-use/full-report.pdf.
[13]
Centers for Disease Control and Prevention. 2013. "Electronic
Cigarette Use Among Middle and High School Students — United
States, 2011-2012," Morbidity and Mortality Weekly Report
(MMWR) 62(35): 729-730.
[14]
Cameron JM, Howell DN, White JR, et al. 2013. "Variable and
Potentially Fatal Amounts of Nicotine in E-cigarette NicotineSolutions." Tobacco Control. [Electronic publication ahead of print], http://tobaccocontrol.bmj.com/content/early/2013/02/12/tobaccocontrol-2012-050604.full; U.S. Department of Health and Human Services. 2012. Preventing
Tobacco Use Among Youth and Young Adults: A Report of the Surgeon
General. Atlanta: U.S. National Center for Chronic Disease
Prevention and Health Promotion, Office on Smoking and Health, p.
549, www.surgeongeneral.gov/library/reports/preventing-youth-tobacco-use/full-report.pdf.
[15]
Food and Drug Administration, Summary of Results:
Laboratory Analysis of Electronic Cigarettes Conducted by FDA, available at: http://www.fda.gov/newsevents/publichealthfocus/ucm173146.htm.
[16]
Eriksen, M., Mackay, J., Ross, H. (2012). The Tobacco
Atlas, Fourth Edition, American Cancer Society, Chapter 29,
p. 80. Retrieved from: www.TobaccoAtlas.org.
[17]
Chaloupka, F. J. & Liccardo Pacula, R., NIH, NCI (2001). The Impact of Price on Youth Tobacco Use, Smoking and Tobacco
Control Monograph 14: Changing Adolescent Smoking Prevalence) 193 - 200. Retrieved from: http://dccps.nih.gov/TCRB/monographs/.
[18]
TTB (2011). Statistical Report — Tobacco (2011) (TTB S 5210-12-2010). Retrieved from: http://www.ttb.gov/statistics/2010/201012tobacco.pdf.
[19]
Druzik et al.v. Board of Health of Haverhill, 324 Mass. 129
(1949).
This regulation is promulgated pursuant to the authority granted
to the Dalton Board of Health by MGL c. 111, § 31, that
"Boards of Health may make reasonable health regulations."
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 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.
Perceivable by either the sense of smell or taste.
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.
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.
An establishment that is not required to possess a retail
food permit whose primary purpose is to sell or offer for sale, but
not for resale, tobacco products and tobacco paraphernalia, in which
the sale of other products is merely incidental, and in which the
entry of persons under the age of 18 is prohibited at all times, and
maintains a valid permit for the retail sale of tobacco products as
required to be issued by the Dalton Board of Health.
Any display from which customers may select a tobacco product
or a nicotine delivery 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 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, any other tobacco products.
A.
No person shall sell tobacco products or permit tobacco products,
as defined herein, to be sold to a person under the minimum legal
sales age; or not being the minor's parent or legal guardian,
give tobacco products as defined herein to a person under the minimum
legal sales age. The minimum legal sales age in the Town of Dalton
is 18.
B.
Required signage.
(1)
In conformance with and in addition to MGL c. 270, § 7,
a copy of MGL c. 270, § 6, shall be posted conspicuously
by the owner or other person in charge thereof in the shop or other
place used to sell tobacco products at retail. The notice shall be
provided by the Massachusetts Department of Public Health and made
available from the Dalton Board of Health. The notice shall be at
least 48 square inches and shall be posted conspicuously by the permit
holder in the retail establishment or other place in such a manner
so that it may be readily seen by a person standing at or approaching
the cash register. The notice shall directly face the purchaser and
shall not be obstructed from view or placed at a height of less than
four feet or greater than nine feet from the floor. The owner or other
person in charge of a shop or other place used to sell tobacco products
at retail shall conspicuously post any additional signs required by
the Massachusetts Department of Public Health.
(2)
The owner or other person in charge of a shop or other place used
to sell tobacco products at retail shall conspicuously post signage
provided by the Dalton Board of Health that discloses current referral
information about smoking cessation.
(3)
The owner or other person in charge of a shop or other place used
to sell tobacco products as defined herein at retail shall conspicuously
post a sign stating that "The sale of tobacco products, including
e-cigarettes, to someone under the minimum legal sales age of 18 years
of age is prohibited." The notice shall be no smaller than 8.5 inches
by 11 inches and shall be posted conspicuously in the retail establishment
or other place in such a manner so that it may be readily seen by
a person standing at or approaching the cash register. The notice
shall directly face the purchaser and shall not be obstructed from
view or placed at a height of less than four feet or greater than
nine feet from the floor.
C.
Identification. Each person selling or distributing tobacco products
as defined herein shall verify the age of the purchaser by means of
a valid government-issued photographic identification containing the
bearer's date of birth that the purchaser is 18 years old or
older. Verification is required for any person under the age of 27.
D.
All retail sales of tobacco products as defined herein must be face-to-face
between the seller and the buyer and occur at the permitted location.
A.
No person shall sell or otherwise distribute tobacco products as
defined herein within the Town of Dalton without first obtaining a
tobacco sales permit issued annually by the Dalton Board of Health.
Only owners of establishments with a permanent, nonmobile location
in Dalton are eligible to apply for a permit and sell tobacco products
at the specified location in Dalton.
B.
As part of the tobacco sales permit application process, the applicant
will be provided with the Dalton Board of Health regulation. Each
applicant is required to sign a statement declaring that the applicant
has read said regulation and that the applicant is responsible for
instructing any and all employees who will be responsible for tobacco
product sales regarding federal, state and local laws regarding the
sale of tobacco and this regulation.
C.
Each applicant who sells tobacco products is required to provide
proof of a current tobacco retailer license issued by the Massachusetts
Department of Revenue before a tobacco product sales permit can be
issued.
D.
The fee for a tobacco product sales permit shall be determined by
the Dalton Board of Health annually.
E.
A separate permit is required for each retail establishment selling
tobacco products as defined herein.
F.
Each tobacco product sales permit shall be displayed at the retail
establishment in a conspicuous place.
G.
No tobacco product sales permit holder shall allow any employee to
sell tobacco products until such employee reads this regulation and
federal and state laws regarding the sale of tobacco and signs a statement,
a copy of which will be placed on file in the office of the employer,
that he/she has read the regulation and applicable state and federal
laws.
H.
A tobacco product sales permit is nontransferable. A new owner of
an establishment that sells tobacco products must apply for a new
permit. No new permit will be issued unless and until all outstanding
penalties incurred by the previous permit holder are satisfied in
full.
I.
Issuance of a tobacco product sales permit shall be conditioned on
an applicant's consent to unannounced, periodic inspections of
his/her retail establishment to ensure compliance with this regulation.
J.
A tobacco product sales permit will not be renewed if the permit
holder has failed to pay all fines issued and the time period to appeal
the fines has expired and/or has not satisfied any outstanding permit
suspensions.
K.
A tobacco sales permit shall not be issued to any new applicant for
a retail location within 500 feet of a public or private elementary
or secondary school as measured by a straight line from the nearest
point of the property line of the school to the nearest point of the
property line of the site of the applicant's business premises.
Applicants who purchase a business that holds a current tobacco product
sales permit at the time of the sale of said business may apply, within
60 days of such sale, for the permit held by the seller if the buyer
intends to sell tobacco products.
No person shall distribute, or cause to be distributed, any
free samples of tobacco products as defined herein. No means, instruments
or devices that allow for the redemption of all tobacco products or
nicotine delivery products for free or cigarettes at a price below
the minimum retail price determined by the Massachusetts Department
of Revenue shall be accepted by any permit holder.
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.
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 tobacco product, as defined herein, vending machines are
prohibited.
All nonresidential roll-your-own machines are prohibited. (This
does not include RYO you buy from stores and take home. These are
the commercial ones that are creeping up on us.)
A.
It shall be the responsibility of the establishment, permit holder
and/or his or her business agent, or retail sales clerk to ensure
compliance with all sections of this regulation. The violator shall
receive:
(1)
A person who violates the provisions of this regulation shall be
subject to a fine of $100 for the first offense. Retail clerks employed
by the tobacco sales permit holder may also be fined $50 for the first
offense.
(2)
In the case of a second violation within 24 months of the date of
the current violation, a fine of $200 and the tobacco product sales
permit shall be suspended for seven consecutive business days. Retail
clerks may also be fined $100 for the second offense.
(3)
In the case of three or more violations within a twenty-four-month
period, a fine of $300 and the tobacco product sales permit shall
be suspended for 30 consecutive business days. Clerks employed by
the tobacco sales permit holder may also be fined $200 for the third
offense.
(4)
In the case of further violations or repeated, egregious violations
of this regulation within a twenty-four-month period, the Board of
Health may revoke a tobacco product sales permit.
B.
Refusal to cooperate with inspections pursuant to this regulation
shall result in the suspension of the tobacco product sales permit
for 30 consecutive business days.
C.
In addition to the monetary fines set above, any permit holder who
engages in the sale or distribution of tobacco products while his
or her permit is suspended shall be subject to the suspension of all
Board of Health issued permits for 30 consecutive business days.
D.
The Dalton Board of Health shall provide notice of the intent to
suspend or revoke a tobacco product sales permit, which notice shall
contain the reasons therefor and establish a time and date for a hearing,
which date shall be no earlier than seven days after the date of said
notice. The permit holder or its business agent shall have an opportunity
to be heard at such hearing and shall be notified of the Board of
Health's decision and the reasons therefor in writing. After
a hearing, the Dalton Board of Health shall suspend or revoke the
tobacco product sales permit if the Board of Health finds that a violation
of this regulation occurred. For purposes of such suspensions or revocations,
the Board shall make the determination notwithstanding any separate
criminal or noncriminal proceedings brought in court hereunder or
under the Massachusetts General Laws for the same offense. All tobacco
products shall be removed from the retail establishment upon suspension
or revocation of the tobacco product sales permit. Failure to remove
all tobacco products shall constitute a separate violation of this
regulation.
Whoever violates any provision of this regulation may be penalized
by the noncriminal method of disposition as provided in MGL c. 40,
§ 21D, or by filing a criminal complaint at the appropriate
venue. Each day any violation exists shall be deemed to be a separate
offense.
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 shall take effect on July 8, 2014.
