Whereas there exists conclusive evidence that tobacco smoking
causes cancer, respiratory and cardiac diseases, negative birth outcomes,
irritations to the eyes, nose and throat;
Whereas the United States Department of Health and Human Services
has concluded that nicotine is as addictive as cocaine or heroin and the Surgeon General found that nicotine exposure during
adolescence, a critical window for brain development, may have lasting
adverse consequences for brain development, and that it is addiction to nicotine that keeps youth
smoking past adolescence;
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;
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;
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%;
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;
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;
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%;
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;
Whereas the Surgeon General found that exposure to tobacco marketing
in stores and price discounting increase youth smoking;
Whereas the federal Family Smoking Prevention and Tobacco Control
Act (FSPTCA), enacted in 2009, prohibited candy- and fruit-flavored
cigarettes, largely because these flavored products were marketed
to youth and young adults, and younger smokers were more likely to have tried these
products than older smokers, neither federal nor Massachusetts laws restrict sales
of flavored non-cigarette tobacco products, such as cigars, cigarillos,
smokeless tobacco, hookah tobacco, and electronic 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;
Whereas the United States 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;
Whereas the United States 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;
Whereas 5.8% of Massachusetts youth currently use e-cigarettes
and 15.9% have tried them;
Whereas the Massachusetts Department of Environmental Protection
has classified liquid nicotine in any amount as an "acutely hazardous
waste";
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;
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;
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;
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."
Now, therefore it is the intention of the Lancaster Board of
Health to regulate the sale of tobacco products.
This regulation is promulgated pursuant to the authority granted
to the Lancaster 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:
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 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 Lancaster 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 regardless of any content.
BUSINESS AGENT
An individual who has been designated by the owner or operator
of any establishment to be the manager or otherwise in charge of said
establishment.
CHARACTERIZING FLAVOR
A distinguishable taste or aroma, other than the taste or
aroma of tobacco, menthol, mint or wintergreen, imparted or detectable
either prior to or during consumption of a tobacco product or component
part thereof, including, but not limited to, tastes or aromas relating
to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic
beverage, herb or spice; provided, however, that no tobacco product
shall be determined to have a characterizing flavor solely because
of the provision of ingredient information or the use of additives
or flavorings that do not contribute to the distinguishable taste
or aroma of the product.
CIGAR
Any roll of tobacco that is wrapped in leaf tobacco or in
any substance containing tobacco, with or without a tip or mouthpiece,
not otherwise defined as a cigarette under MGL c. 64C, § 1,
Paragraph 1.
COMPONENT PART
Any element of a tobacco product, including, but not limited
to, the tobacco, filter and paper, but not including any constituent.
CONSTITUENT
Any ingredient, substance, chemical or compound, other than
tobacco, water or reconstituted tobacco sheet, that is added by the
manufacturer to a tobacco product during the processing, manufacturing
or packaging of the tobacco product. Such term shall include a smoke
constituent.
COUPON
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.
EDUCATIONAL INSTITUTION
Any public or private college, school, professional school,
scientific or technical institution, university or other institution
furnishing a program of higher education.
EMPLOYEE
Any individual who performs services for an employer.
EMPLOYER
Any individual, partnership, association, corporation, trust
or other organized group of individuals that uses the services of
one or more employees.
FLAVORED TOBACCO PRODUCT
Any tobacco product or component part thereof that contains
a constituent that has or produces a characterizing flavor. A public
statement, claim or indicia made or disseminated by the manufacturer
of a tobacco product, or by any person authorized or permitted by
the manufacturer to make or disseminate public statements concerning
such tobacco product, that such tobacco product has or produces a
characterizing flavor shall constitute presumptive evidence that the
tobacco product is a flavored tobacco product.
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 provides pharmaceutical goods and services
and is subject to the provisions of 247 CMR 6.00. Health care institutions
include, but are not limited to, hospitals, clinics, health centers,
pharmacies, drug stores, doctor offices, optician/optometrist offices
and dentist offices.
LIQUID NICOTINE CONTAINER
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 open by the consumer or retailer.
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 state 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.
SCHOOLS
Public or private elementary or secondary schools.
SELF-SERVICE DISPLAY
Any display from which customers may select a tobacco product,
as defined herein, without assistance from an employee or store personnel.
SMOKE CONSTITUENT
Any chemical or chemical compound in mainstream or sidestream
tobacco smoke that either transfers from any component of the tobacco
product to the smoke or that is formed by the combustion or heating
of tobacco, additives or other component of the tobacco product.
SMOKING BAR
An establishment that primarily is engaged in the retail
sale of tobacco products for consumption by customers on the premises
and is required by MGL c. 270, § 22, to maintain a valid
permit to operate a smoking bar issued by the Massachusetts Department
of Revenue. "Smoking bar" shall include, but not be limited to, those
establishments that are commonly known as "cigar bars" and "hookah
bars."
TOBACCO PRODUCT
Any product containing, made, or derived from tobacco or
nicotine that is intended for human consumption, whether smoked, chewed,
absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any
other means, including, but not limited to: cigarettes, cigars, little
cigars, chewing tobacco, pipe tobacco, snuff; or electronic cigarettes,
electronic cigars, electronic pipes, electronic hookah, or other similar
products, regardless of nicotine content, that rely on vaporization
or aerosolization. "Tobacco product" includes any component or part
of a tobacco product. "Tobacco product" does not include any product
that has been approved by the United States Food and Drug Administration
either as a tobacco use cessation product or for other medical purposes
and which is being marketed and sold or prescribed solely for the
approved purpose.
VENDING MACHINE
Any automated or mechanical self-service device which, upon
insertion of money, tokens or any other form of payment, dispenses
or makes cigarettes or any other tobacco products, as defined herein.
No person shall sell or distribute or cause to be sold or distributed
any flavored tobacco product, except in smoking bars and adult-only
retail tobacco stores.
No person or entity shall sell or distribute blunt wraps in
Lancaster.
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 United States 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 health care institution located in Lancaster shall sell or
cause to be sold tobacco products, as defined herein. No retail establishment
that operates or has a health care institution within it, such as
a pharmacy, optician/optometrist or drug store, shall sell or cause
to be sold tobacco products, as defined herein.
No educational institution located in Lancaster 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 of tobacco products, as defined herein,
must comply with those provisions found at 940 CMR 21.00 ("Sale and
Distribution of Cigarettes, Smokeless Tobacco Products and Electronic
Smoking Devices in Massachusetts").
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 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 May 9, 2018, and shall take effect
on July 1, 2018.