[Adopted effective 1-1-2015]
Whereas there exists conclusive evidence that tobacco smoking
causes cancer, respiratory and cardiac diseases, negative birth outcomes,
irritations to the eyes, nose and throat; [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.]
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; [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.]
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; [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.]
Whereas the U.S. 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; [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/.)
(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.]
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 research has shown that raising the minimum legal drinking
age to 21 has reduced alcohol consumption among youth and protected
drinkers from long-term negative outcomes in adulthood, including
alcohol and other drug dependence; (Delong W, Blanchette J 2013. "Case
Closed: Research Evidence on the Positive Public Health Impact of
the Age 21 Minimum Legal Drinking Age in the United States." J. Stud.
Alcohol Drugs, Supplement 17, 108 - 115, 2014.)
More than 80% of all adult smokers begin smoking before the
age of 18; and more than 90% do so before leaving their teens (SAMHSA,
Calculated based on data in 2011 National Survey on Drug Use and Health.)
Whereas the U.S. Centers for Disease Control and Prevention
has reported that electronic cigarette use among middle and high school
students doubled from 2011 to 2012; [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.]
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; (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.)
Whereas Non-Residential 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 [Eriksen, M., Mackay,
J., Ross, H. (2012). The Tobacco Atlas, Fourth Edition, American Cancer
Society, Chapter 29, p. 80. Retrieved from: www.TobaccoAtlas.org.]
and high prices deter youth from starting. [Chaloupka, F. J. and 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/.]
Inexpensive cigarettes, like those produced from RYO machines, promote
the use of tobacco, resulting in a negative impact on public health
and increased health care costs, and severely undercut the evidence-based
public health benefit of imposing high excise taxes on tobacco;
Whereas it is estimated that 90% of what is being sold as pipe
tobacco is actually being used in nonresidential RYO machines. Pipe
tobacco shipments went from 11.5 million pounds in 2009 to 22.4 million
pounds in 2010. Traditional RYO tobacco shipments dropped from 11.2
million pounds to 5.8 million pounds; and cigarette shipments dropped
from 308.6 billion sticks to 292.7 billion sticks according to the
December 2010 statistical report released by the U.S. Department of
the Treasury, Alcohol and Tobacco Tax and Trade Bureau (TTB); [TTB
(2011). Statistical Report - Tobacco (2011) (TTB S 5210-12-2010).
Retrieved from: http://www.ttb.gov/statistics/2010/201012tobacco.pdf.]
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
undermines 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".
[Druzik et al v. Board of Health of Haverhill, 324 Mass. 129 (1949).]
Now, therefore, it is the intention of the Hull Board of Health
to regulate the sale of tobacco products.
This regulation is promulgated pursuant to the authority granted to the Hull Board of Health by Massachusetts General Laws Chapter 111, Section 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:
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.
Any roll of tobacco that is wrapped in leaf tobacco or in
any substance containing tobacco, with or without a tip or mouthpiece,
not otherwise defined as a cigarette under Massachusetts General Law
Chapter 64C, Section 1, Paragraph 1.
Any 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.
An individual, partnership, association, corporation or trust
or any person or group of persons that provides health-care services
and employs health-care providers licensed, or subject to licensing,
by the Massachusetts Department of Public Health under M.G.L. c. 112
or a retail establishment that provides pharmaceutical goods and services
and is subject to the provisions of 247 CMR 6.00. Health care institutions
include, but are not limited to, hospitals, clinics, health centers,
pharmacies, drugstores, doctor offices, optician/optometrist offices
and dentist offices.
The age an individual must be before that individual can
be sold a tobacco product in the municipality.
A mechanical device made available for use (including to
an individual who produces cigars, cigarettes, smokeless tobacco,
pipe tobacco, or roll-your-own tobacco solely for the individual's
own personal consumption or use) that is capable of making cigarettes,
cigars or other tobacco products. RYO machines located in private
homes used for solely personal consumption are not Non-residential
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 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 tobacco products or permit tobacco products,
as defined herein, to be sold to a person under the minimum legal
sales age; or, not being the individual's parent or legal guardian,
give tobacco products, as defined herein, to a person under the minimum
legal sales age. The minimum legal sales age in Hull is 21.
B.
Required signage.
(1)
In conformance with and in addition to Massachusetts General Law, Chapter 270, Section 7, a copy of Massachusetts General Laws, Chapter 270, Section 6, shall be posted conspicuously by the owner or other person in charge thereof in the shop or other place used to sell tobacco products at retail. The notice shall be provided by the Massachusetts Department of Public Health and made available from the Hull 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, as defined herein, at retail shall
conspicuously post signage provided by the Hull 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 21 years 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 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 Hull without first obtaining a
Tobacco Product Sales Permit issued annually by the Hull Board of
Health. Only owners of establishments with a permanent, non-mobile
location in Hull are eligible to apply for a permit and sell tobacco
products at the specified location in Hull.
B.
As part of the Tobacco Product Sales Permit application process,
the applicant will be provided with the Hull 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 Hull 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, as defined herein, until such employee reads
this regulation and federal and state laws regarding the sale of tobacco
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 and federal laws.
H.
A Tobacco Product Sales Permit is non-transferable. 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.
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.
Maximum Number of Tobacco Product Sales Permits. At any given time,
there shall be no more than 12 Tobacco Product Sales Permits issued
in Hull. 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. 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, as defined herein. New applicants for permits who are applying
at a time when the maximum number of permits have been issued will
be placed on a waiting list and will be eligible to apply for a permit
on a "first-come, first-served" basis as issued permits are either
not renewed or are returned to the Board of Health.
L.
A Tobacco Product Sales Permit shall not be issued to any new applicant
for a retail location within 500 feet of a public or private elementary
or secondary school as measured by a straight line from the nearest
point of the property line of the school to the nearest point of the
property line of the site of the applicant's business premises. Applicants
who purchase an existing business that holds a current Tobacco Product
Sales Permit at the time of the sale of said business may apply, within
60 days of such sale, for the permit held by the Seller if the Buyer
intends to sell tobacco products, as defined herein.
No person or entity shall sell or distribute blunt wraps in
Hull.
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 any tobacco products,
as defined herein, 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 vending machines containing tobacco products, as defined
herein, are prohibited.
All Non-Residential Roll-Your-Own machines are prohibited.
No health-care institution located in Hull 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 drugstore, shall sell or cause
to be sold tobacco products, as defined herein.
No educational institution located in Hull 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.
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 $100.
(2)
In the case of a second violation within 24 months of the date
of the current violation, a fine of $200 and the Tobacco Product Sales
Permit shall be suspended for seven consecutive business days.
(3)
In the case of three or more violations within a twenty-four-month
period, a fine of $300 and the Tobacco Product Sales Permit shall
be suspended for 30 consecutive business days.
(4)
In the case of further violations or repeated, egregious violations
of this regulation within a twenty-four-month period, the Board of
Health may revoke a tobacco product sales permit.
B.
Refusal to cooperate with inspections pursuant to this regulation
shall result in the suspension of the tobacco product sales permit
for 30 consecutive business days.
C.
In addition to the monetary fines set above, any permit holder who
engages in the sale or distribution of tobacco products 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 Hull 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 Hull 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 non-criminal 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 non-criminal method of disposition as provided in Massachusetts
General Laws, Chapter 40, Section 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 shall take effect on January 1, 2015.
