[Adopted 4-1-2015; amended
in its entirety 11-25-2019]
There exists conclusive evidence that products containing, made
or derived from tobacco or nicotine that is intended for human consumption,
cause cancer, respiratory and cardiac diseases, and negative birth
outcomes, therefore, it is the intention of the South Hadley Board
of Health to regulate the sale of tobacco products, as defined herein.
This regulation is promulgated pursuant to the authority granted
to the South Hadley 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 does not share space with another business,
that has a separate entrance, that does not sell food or alcohol,
that does not have a restaurant license or lottery license, whose
only purpose is to sell or offer for retail sale tobacco products
and/or tobacco product paraphernalia, in which the entry of persons
under the age of 21 is prohibited at all times, and which maintains
a valid permit for the retail sale of tobacco products from the South
Hadley Board of Health and applicable state licenses. Entrance to
the establishment must be secure so that access to the establishment
is restricted to employees and to those 21 years or older. The establishment
shall not allow anyone under the age of 21 to work at the establishment.
As of the effective date of this regulation, no new adult-only retail
tobacco stores shall be located within 25 feet of a retailer with
a tobacco product sales permit.
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, 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, menthol,
mint, wintergreen, 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 communication
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 product containing, made or that is derived from tobacco
or nicotine that is intended for human consumption, regardless of
the nicotine content, that relies on vaporization or aerosolization.
Electronic cigarette devices include any component part of such product,
including liquid for use in the device, regardless of whether the
liquid contains nicotine, whether or not sold separately. This term
includes such devices whether they are manufactured as e-cigarettes,
e-cigars, e-pipes or under any other product name. It does not include
any product approved by the United States Food and Drug Administration
for sale as a tobacco cessation product that is being marketed and
sold or prescribed solely for the approved purpose.
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.
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 Code of Massachusetts Regulations
(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.
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, 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
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.
Any object used, intended for use, or designed for use in
inhaling or otherwise introducing tobacco products into the human
body.
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
(e-cigarettes), electronic cigars, electronic pipes, electronic hookah,
liquid nicotine, e-liquids 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.
A.
No person shall sell or provide a tobacco product or permit tobacco
products to be sold or distributed to a person under the minimum legal
sales age; or not being the individual's parent or legal guardian,
give tobacco products to a person under the minimum legal sales age.
The minimum legal sales age in South Hadley is 21.
B.
Required signage.
(1)
In conformance with and in addition to Massachusetts General Law,
Chapter 270, § 7, a copy of Massachusetts General Laws,
Chapter 270, § 6, shall be posted conspicuously by the owner
or other person in charge thereof in the stop 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 South Hadley 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 at retail shall conspicuously post signage
provided by the South Hadley 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 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 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, face-to-face sales:
(1)
Each person selling or distributing tobacco products shall verify
the age of the purchaser by means of a valid government-issued photographic
identification, including but not limited to a driver's license,
U.S. military ID, passport containing the bearer's date of birth
that the purchaser is 21 years old or the legal sales age required
by state law, whichever is older. Verification is required for any
person under the age of 27.
(2)
All retail sales of tobacco products 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 within
the Town of South Hadley without first obtaining a tobacco product
sales permit issued annually by the South Hadley Board of Health.
Only owners of establishments with a permanent, nonmobile location
in South Hadley are eligible to apply for a permit and sell tobacco
products, at the specified location in South Hadley.
B.
As part of the tobacco product sales permit application process,
the applicant will be provided with the South Hadley 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 about the sale
of tobacco and this regulation.
C.
Each applicant who sells tobacco products is required to provide
proof of current tobacco retailer licenses issued by the Massachusetts
Department of Revenue, when required by state law, before a tobacco
product sales permit can be issued. The applicant may be asked to
provide evidence that a legitimate business transfer or business purchase
has taken place.
D.
A separate permit, displayed conspicuously, is required for each
retail establishment selling tobacco products. The fee shall be determined
by the South Hadley Board of Health annually.
E.
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.
F.
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.
G.
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.
H.
A tobacco product sales permit will not be renewed if the permit holder has sold a tobacco product to a person under the MLSA, § 300-92, Sales to persons under minimum legal sales age prohibited, Subsection A, three times within the previous permit year and the time period to appeal has expired. The violator may request a hearing in accordance with Subsection A(4) of § 300-107, Violations and penalties.
I.
Maximum number of tobacco product sales permits.
(1)
At any given time, there shall be no more than 11 tobacco product
sales permits issued in South Hadley. 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. 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, revoked, or are returned to the Board
of Health.
(2)
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.
(3)
Applicants who purchase or acquire an existing business that holds
a valid tobacco product sales permit at the time of the sale or acquisition
of said business must apply within 60 days of such sale or acquisition
for the permit held by the current permit holder if the applicant
intends to sell tobacco products.
A.
No person shall operate an adult-only retail tobacco store, as defined
herein, within the Town of South Hadley without first obtaining an
adult-only retail tobacco store permit, as defined herein, issued
annually by the South Hadley Board of Health.
B.
The adult-only retail tobacco store is also required to have a tobacco product sales permit pursuant to § 300-93 of this regulation.
C.
The fee for an adult-only retail tobacco store permit shall be determined
by the South Hadley Board of Health.
D.
An adult-only retail tobacco store permit is nontransferable. No
new permit will be issued unless and until all outstanding penalties
incurred by the previous permit holder are satisfied in full.
E.
A separate adult-only retail tobacco store permit is required for
each adult-only retail tobacco store.
F.
The adult-only retail tobacco store permit shall be displayed at
the adult-only retail tobacco store in a conspicuous place.
G.
Issuance of an adult-only retail tobacco store permit shall be conditioned
on an applicant's consent to unannounced, periodic inspections
of the adult-only retail tobacco store to ensure compliance with this
regulation.
H.
An adult-only retail tobacco store 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 suspension.
I.
Maximum number of adult-only retail tobacco store permits. At any
given time, there shall be no more than one adult-only retail tobacco
store permit issued in South Hadley. No permit renewal will be denied
based on the requirements of this subsection except any permit holder
who has failed to renew their permit within 30 days of expiration
will be treated as a first-time applicant. New applicants for permits
who are applying at a time when the maximum 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, revoked, or are returned to the South Hadley Board
of Health.
A.
No person shall sell or distribute or cause to be sold or distributed
a single cigar unless such cigar is priced for retail sale at $2.50
or more.
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 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 South Hadley.
D.
The South Hadley 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, as described herein, except in permitted
adult-only retail tobacco stores.
No person or entity shall sell or distribute blunt wraps in
South Hadley.
A.
No person shall:
(1)
Distribute or cause to be distributed any free samples of tobacco
products or nicotine delivery products. No means, instruments or devices
that allow for 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.
(2)
Distribute or cause to be distributed, any free samples of tobacco
products, 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 without charge or for less
than the listed or nondiscounted price; or
(3)
Sell a tobacco product to consumers through any multi-pack discounts
(e.g., buy-two-get-one-free) or otherwise provide or distribute to
consumers any tobacco product without charge or for less than the
listed or nondiscounted price in exchange for the purchase of any
other tobacco product.
B.
This section shall not apply to products for which there is a state
law prohibiting them from being sold as loss leaders and for which
a minimum retail price is required by law.
A.
The sale or distribution of tobacco products in any form other than
an original factory-wrapped package is prohibited, including the repackaging
or dispensing of any tobacco product for retail sale. No person shall
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.
Permit holders who sell Liquid Nicotine Containers must comply with
the provisions of 310 CMR 30.000 and must provide the 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 permit holders 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."
D.
No permit holder shall refill a cartridge that is prefilled and sealed
by the manufacturer and not intended to be opened by the consumer
or retailer.
All self-service displays of tobacco products are prohibited.
All humidors including, but not limited to, walk-in humidors must
be locked.
All vending machines containing tobacco products are prohibited.
All nonresidential roll-your-own machines are prohibited.
No health care institution located in South Hadley shall sell
or cause to be sold tobacco products. 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.
No educational institution located in South Hadley shall sell
or cause to be sold tobacco products. This includes all educational
institutions as well as any retail establishments that operate on
the property of an educational institution.
No person shall sell or distribute or cause to be sold or distributed
any electronic cigarette except in a permitted adult-only retail store.
A.
The sale or distribution of tobacco products must comply with those
provisions found at MGL c. 270, §§ 6, 6A, 7, and MGL
c. 112, § 61A.
B.
The sale or distribution of tobacco products 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)
and 940 CMR 22.00 (Sale and Distribution of Cigars in Massachusetts).
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 36 months of the date
of the current violation, a fine of $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.
(4)
In the case of four violations or repeated, egregious violations of this regulation, as determined by the Board of Health, within a thirty-six-month period, the Board of Health shall hold a hearing in accordance with Subsection D of this section and may permanently revoke a tobacco product sales permit.
B.
Failure 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. Multiple
tobacco product sales permit suspensions shall not be served concurrently.
D.
The South Hadley 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 South Hadley 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. 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.
Each day any violation exists shall be deemed to be a separate
offense.
Enforcement of this regulation shall be by the South Hadley
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 South Hadley 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 shall take effect on November 25, 2019.
