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] and where the harmful effects of tobacco smoke are not
confined to smokers but also cause severe discomfort and illness to
nonsmokers; and whereas environmental tobacco smoke [hereinafter ETS],
which includes both exhaled smoke and side stream smoke from burning
tobacco products, causes the death of 53,000 Americans each year;[2] and whereas the U.S. Environmental Protection Agency classified
secondhand smoke as a known human carcinogen;[3] now therefore, the Board of Health of Sherborn recognizes
the right of those who wish to breathe smoke-free air and establishes
this regulation to protect and improve the public health and welfare
by prohibiting smoking in public places and workplaces.
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;[4]
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;[5]
Whereas the U.S. Department of Health and Human Services has
concluded that nicotine is as addictive as cocaine or heroin[6] and the Surgeon General found that nicotine exposure during
adolescence, a critical window for brain development, may have lasting
adverse consequences for brain development;[7]
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 many non-cigarette tobacco products, such as 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;[8]
Whereas sales of flavored little cigars increased by 23% between
2008 and 2010;[9] and the top three most popular cigar brands among African-American
youth aged 12-17 are the flavored and low-cost Black and Mild, White
Owl, and Swisher Sweets;[10]
Whereas the federal Family Smoking Prevention and Tobacco Control
Act (FSPTCA), enacted in 2009, prohibited candy- and fruit-flavored
cigarettes,[11] largely because these flavored products were marketed
to youth and young adults,[12] and younger smokers were more likely to have tried these
products than older smokers;[13]
Whereas although the manufacture and distribution of flavored
cigarettes (excluding menthol) is banned by federal law,[14] neither federal nor Massachusetts laws restrict sales
of flavored noncigarette tobacco products, such as cigars, cigarillos,
smokeless tobacco, hookah tobacco, and electronic smoking 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;[15]
Whereas data from the National Youth Tobacco Survey indicate
that more than two-fifths of U.S. middle and high school smokers report
using flavored little cigars or flavored cigarettes;[16]
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;[17]
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;[18]
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;[19]
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;[20]
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 went from 11.8%
in 2003 to 14.3% in 2011;[21]
Whereas survey results show that more youth report that they
have smoked a cigar product when it is mentioned by name, than report
that they smoked a cigar in general, indicating that cigar use among
youth is underreported;[22]
Whereas in Massachusetts, youth use of all other tobacco products,
including cigars, rose from 13.3% in 2003 to 17.6% in 2009, and was
higher than the rate of current cigarette use (16%) for the first
time in history;[23]
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%;[24]
Whereas nicotine levels in cigars are generally much higher
than nicotine levels in cigarettes;[25]
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[26] and high prices deter youth from starting.[27] 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 Non-Residential 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);[28]
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."[29]
Now, therefore it is the intention of the Sherborn Board of
Health to regulate the sale and use of tobacco and nicotine delivery
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]
McGinnis JM, Goege W, "Actual Causes of Death in the United
States", JAMA 1993 270:2207-2212).
[3]
IARC-WHO, 2002.
[4]
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.
[5]
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.
[6]
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/.
[7]
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.
[8]
CDC (2009), Youth Risk Behavior, Surveillance Summaries (MMWR
2010: 59, 12, note 5). Retrieved from: http:www.cdc.gov/mmwr/pdf/ss/ss5905.pdf.
[9]
Delnevo, C., Flavored Little Cigars memo, September 21, 2011,
from Neilson market scanner data.
[10]
SAMSHA, Analysis of data from the 2011 National Survey on
Drug Use and Health.
[11]
21 U.S.C. § 387g.
[12]
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.
[13]
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.
[14]
21 U.S.C. § 387g
[15]
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.
[16]
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%2900415-1/abstract.
[17]
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.
[18]
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.
[19]
Cameron JM, Howell DN, White JR, et al. 2013. "Variable and
Potentially Fatal Amounts of Nicotine in E-cigarette Nicotine Solutions."
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.
[20]
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.
[21]
CDC (2011) Youth Risk Behavior, Surveillance Summaries [MMWR
2012: 87 (No SS-61)]. Retrieved from: www.cdc.gov; and CDC (2003),
Youth Risk Behavior, Surveillance Summaries [MMWR 2004: 53, 54 (No.
SS-02)].
[22]
2010 Boston Youth Risk Behavior Study. 16.5% of Boston youth
responded that they had ever smoked a fruit or candy flavored cigar,
cigarillo or little cigar, while 24.1% reported ever smoking a "Black
and Mild" Cigar.
[23]
Commonwealth of Massachusetts, Data Brief, Trends in Youth
Tobacco Use in Massachusetts, 1993-2009. Retrieved from: http://www.mass.gov/Eeohhs2/docs/dph/tobacco_control/adolescent_tobacco_use_youth_trends_1993_2009.pdf.
[24]
Ringel, J., Wasserman, J., and Andreyeva, T. (2005) Effects
of Public Policy on Adolescents' Cigar Use: Evidence from the National
Youth Tobacco Survey. American Journal of Public Health, 95(6), 995-998,
doi: 10.2105/AJPH.2003.030411 and cited in Cigar, Cigarillo and Little
Cigar Use among Canadian Youth: Are We Underestimating the Magnitude
of this Problem?, J. Prim. P. 2011, Aug: 32(3-4):161-70. Retrieved
from: www.nebi.nim.gov/pubmed/21809109.
[25]
National Institute of Health (NIH), National Cancer Institute
(NCI) (2010). Cigar Smoking and Cancer. Retrieved from: http://www.cancer.govb/cancertopics/factsheet/Tobacco/cigars.
[26]
Eriksen, M., Mackay, J., Ross, H. (2012). The Tobacco Atlas,
Fourth Edition, American Cancer Society, Chapter 29, p. 80. Retrieved
from: www.TobaccoAtlas.org.
[27]
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/.
[28]
TTB (2011). Statistical Report - Tobacco (2011) (TTB S 5210-12-2010).
Retrieved from: http://www.ttb.gov/statistics/2010/201012tobacco.pdf.
[29]
Druzik et al v. Board of Health of Haverhill, 324 Mass. 129
(1949).
This regulation is promulgated pursuant to the authority granted
to the Sherborn Board of Health by MGL c. 111, § 31, that
"Boards of Health may make reasonable health regulations." It is also
promulgated pursuant to MGL c. 270, § 22(j), which stats
in part that "[n]othing in this section shall permit smoking in an
area in which smoking is or may hereafter be prohibited by law including,
without limitation; any other law or . . . health . . . regulation.
Nothing in this section shall preempt further limitation of smoking
by the commonwealth . . . or political subdivision of the commonwealth."
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.
Board of Health of the Town of Sherborn.
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 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 solid nicotine and or liquid nicotine or any liquid. This term
shall include such devices whether they are manufactured as e-cigarettes,
e-cigars, e-pipes, e-hookahs, or under any other product name.
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.
A space bounded by walls, with or without windows or fenestrations,
continuous from floor to ceiling and enclosed by one or more doors,
including but not limited to an office, function room or hallway.
Any single individual, group of individuals, corporation,
partnership, institution, employer, association, firm, or any other
legal entity whether public or private.
Any tobacco product or nicotine delivery product, including
e-cigarettes defined herein, 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 nicotine delivery product, including e-cigarettes
as defined herein, or by any person authorized or permitted by the
manufacturer to make or disseminate public statements concerning such
product, that such product has or produces a characterizing flavor
shall constitute presumptive evidence that the product is a flavored
tobacco product or nicotine delivery product, including e-cigarettes
as defined herein.
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, drugstores, doctor offices and dentist offices.
The age an individual must be before that individual can
be sold a tobacco product in the municipality.
Any manufactured article or product made wholly or in part
of a tobacco substitute or containing nicotine that is expected or
intended for human consumption, but not including a product approved
by the United States Food and Drug Administration for sale as a tobacco
use cessation product or harm reduction product or for other medical
purposes and which is being marketed and sold solely for that approved
purpose. Nicotine delivery products include, but are not limited to,
e-cigarettes.
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.
An outdoor area, open to the air at all times, that cannot
be enclosed by a wall or side covering.
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.
Any not-for-profit entity created and organized pursuant
to MGL Chapter 180 as a charitable corporation with a defined membership.
A private club is not a place of public accommodation but rather is
distinctly private. Criteria used to determine whether a club is distinctly
private include, but are not limited to, those factors identified
in 204 CMR 10.02. If the private club holds an alcoholic beverage
license, said license shall be a "club license" or a "war veterans
club license" as defined in MGL c. 138, § 12, and by the
Massachusetts Alcohol Beverage Control Commission. Said license is
subject to the terms set forth by the local licensing authority.
Any building or facility owned, leased, rented, operated
and/or occupied by the Town of Sherborn, including school buildings
and grounds; outdoor athletic and recreational facilities and their
parking lots; any area open to the general public, including but not
limited to restaurants, bar areas of restaurants, bars, auditoriums,
licensed child-care locations and other child-care facilities, schools
and school property, public and private educational facilities, clinics,
hospitals, health care facilities, nursing homes, long-term care facilities,
public libraries, municipal buildings, private clubs, museums, theaters,
retail stores, laundromats, haircutting establishments, salons, massage
and body art establishments, retail food establishment, fast-food
or take-out food facilities, indoor sports arenas, public transit
facilities, enclosed shopping malls, common areas in privately owned
buildings, common areas in public access buildings, any clubs, rooms
or halls when open to the public or when used for public meetings,
all areas available to and customarily used by the public in all businesses
and nonprofit entities patronized by the public, including, but not
limited to, attorneys' offices and other offices, banks, hotels and
motels, stairwells, hallways, entranceways, waiting areas, lobbies,
public restrooms, and elevators accessible to the public.
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 Sherborn Board of Health.
Public or private elementary or secondary schools.
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.
The inhaling, exhaling, burning, holding or carrying of any
lighted cigar, cigarette, pipe, or other lighted tobacco product in
any form or other tobacco products or nontobacco products designed
to be combusted and inhaled.
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."
The Town of Sherborn, Massachusetts.
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.
Any enclosed area of a structure or portion thereof at which
one or more employees perform services for their employer (including
the personal residence of the employer during those hours when used
as a place of employment). It also includes motor vehicles, employee
lounges, restrooms, conference rooms, hallways, stairways and entranceways,
as well as exterior, unenclosed spaces at stairs, ramps, landings,
patios, porches, decks, and adjacent yards, loading docks and other
areas within 20 feet of the entrance doors or other areas where smoke
would migrate into the enclosed area of a structure.
A.
It shall be the responsibility of the employer to provide a smoke-free
environment for all employees working in an enclosed workplace.
B.
Smoking is prohibited in Sherborn in accordance with MGL c. 270,
§ 22 (commonly known as the "Smoke-Free Workplace Law").
D.
Smoking bars are prohibited in the Town of Sherborn.
E.
The use of e-cigarettes is prohibited wherever smoking is prohibited pursuant to MGL c. 270, § 22, and Subsection C of this section.
F.
Nothing in this regulation shall prohibit any establishment from
becoming voluntarily completely smoke-free.
A.
No person shall sell tobacco or nicotine delivery products or permit
tobacco or nicotine delivery 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 or nicotine delivery products
as defined herein to a person under the minimum legal sales age. The
minimum legal sales age in Sherborn is 21.
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 Sherborn 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 and/or nicotine delivery products at retail shall
conspicuously post signage provided by the Sherborn 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 and/or nicotine delivery products as defined
herein at retail shall conspicuously post a sign stating that "The
sale of tobacco and nicotine delivery products, including e-cigarettes,
to someone under the minimum legal sales age of 21 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 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 and/or
nicotine delivery 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 and/or nicotine delivery 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 and/or nicotine
delivery products as defined herein within the Town of Sherborn without
first obtaining a tobacco and nicotine delivery sales permit (permit)
issued annually by the Sherborn Board of Health. Only owners of establishments
with a permanent, nonmobile location in Sherborn are eligible to apply
for a permit and sell tobacco and/or nicotine delivery products at
a specified location in Sherborn.
B.
As part of the permit application process, the applicant will be
provided with the Sherborn 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 and/or nicotine
delivery product sales regarding federal, state and local laws regarding
the sale of tobacco and/or nicotine delivery products and this regulation.
C.
Each applicant who sells tobacco and/or nicotine delivery products
is required to provide proof of a current tobacco retailer license
issued by the Massachusetts Department of Revenue before a permit
can be issued.
D.
The fee for a permit shall be determined by the Sherborn Board of
Health annually.
E.
A separate permit is required for each retail establishment selling
tobacco and/or nicotine delivery products as defined herein.
F.
Each permit shall be displayed at the retail establishment in a conspicuous
place.
G.
No permit holder shall allow any employee to sell tobacco and/or
nicotine delivery products until such employee reads this regulation
and federal and state laws regarding the sale of tobacco and/or 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 and federal laws.
H.
A permit is nontransferable. A new owner of an establishment that
sells tobacco and/or nicotine delivery 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 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 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.
As a condition for obtaining and/or renewing a permit, the Sherborn
Board of Health may require tobacco and/or nicotine delivery product
retailers and any employee involved in the act of selling tobacco
and/or nicotine delivery products to participate in training programs
provided or approved by the Board regarding compliance with the laws
and regulations prohibiting the sale or tobacco and/or nicotine delivery
products to minors and to individuals as stated in herein.
A.
No retailer, retail establishment, or other individual or entity
shall sell or distribute or cause to be sold or distributed a cigar
unless the cigar is contained in an original package of at least four
cigars. The four-pack must be priced at the retail market price or
$5, whichever price is higher.
B.
This section shall not apply to:
(1)
The sale or distribution of any single cigar having a retail
price of $2.50 or more.
(2)
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 Sherborn.
C.
The Sherborn 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 or nicotine delivery product.
No person or entity shall sell or distribute blunt wraps in
Sherborn.
No person shall distribute, or cause to be distributed, any
free samples of tobacco or nicotine delivery products as defined herein.
No means, instruments or devices that allow for the redemption of
tobacco or nicotine delivery products for free or cigarettes at a
price below the minimum retail price as determined by the Massachusetts
Department of Revenue shall be accepted by any permit holder.
The sale or distribution of tobacco and nicotine delivery products
as defined herein in any form other than an original factory-wrapped
package is prohibited, including the repackaging or dispensing of
any 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 and nicotine delivery products
as defined herein are prohibited. All humidors, including, but not
limited to, walk-in humidors, must be locked.
[Amended 7-17-2024]
All tobacco product defined herein as vending machines are prohibited.
All nonresidential roll-your-own machines are prohibited.
No health care institution located in Sherborn shall sell or
cause to be sold tobacco or nicotine delivery products as defined
herein. No retail establishment that operates or has a health care
institution within it, such as a pharmacy or drugstore, shall sell
or cause to be sold tobacco or nicotine delivery products as defined
herein.
No educational institution located in Sherborn shall sell or
cause to be sold tobacco or nicotine delivery 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 and the tobacco
and nicotine delivery product sales permit (where applicable) may
be suspended for seven consecutive business days.
(2)
In the case of a second violation within a twelve-month period
of the date of the current violation, a fine of $200 and the tobacco
and nicotine delivery product sales permit (where applicable) may
be suspended for 14 consecutive business days.
[Amended 7-17-2024]
(3)
In the case of three or more violations within a twelve-month
period, a fine of $500 and the tobacco and nicotine delivery product
sales permit (where applicable) may be suspended for up to 60 consecutive
business days.
(4)
In the case of further violations or repeated, egregious violations
of this regulation within a twelve-month period, the Board of Health
may revoke a tobacco and nicotine delivery product sales permit.
B.
Refusal to cooperate with inspections pursuant to this regulation
shall result in the suspension of a 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 and/or nicotine delivery
products while his or her permit is suspended shall be subject to
the suspension of all other Board of Health-issued permits for 30
consecutive business days.
D.
The Sherborn Board of Health shall provide notice of the intent to
suspend or revoke a 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 Sherborn
Board of Health may suspend or revoke the 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 and nicotine delivery products shall be
removed from the retail establishment upon suspension or revocation
of the permit. Failure to remove all tobacco and nicotine delivery
products shall constitute a separate violation of this regulation.
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 June 1, 2014.
