[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;
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, 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 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;
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;
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;
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 U.S. 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 Westminster Board of Health to regulate the sale of tobacco
products.
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:
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 Westminster 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.
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 opened 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 adult-only retail tobacco stores.
No person or entity shall sell or
distribute blunt wraps in Westminster.
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.
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.
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:
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.
E-CIGARETTE
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.
EMPLOYEE
Any individual who performs services for an employer.
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.
MINOR
Any individual who is under the age of 18.
NICOTINE-DELIVERY PRODUCT
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.
PERSON
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.
SELF-SERVICE DISPLAY
Any display from which customers may select a nicotine-delivery
product without assistance from an employee or store personnel, excluding
vending machines.
VENDING MACHINE
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.
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.
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.