Town of Chelmsford, MA Tobacco

[Added 7-10-1995; amended 5-5-1997; 7-1-2019; 1-6-2020; 9-13-2021 by Board of Health; 10-4-2021 by Board of Health]

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];

[1]

Note: 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 the U.S. Department of Health and Human Services has concluded that nicotine is as addictive as cocaine or heroin[2] and the Surgeon General found that nicotine exposure during adolescence, a critical window for brain development, may have lasting adverse consequences for brain development,[3] and that it is addiction to nicotine that keeps youth smoking past adolescence[4];

[2]

Note: 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/.

[3]

Note: 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.

[4]

Note: Id. at Executive Summary p. 13. Retrieved from: http://www.surgeongeneral.gov/library/reports/50-years-of- progress/execsummary.pdf

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[5];

[5]

Note: United States v. Phillip Morris, Inc., RJ Reynolds Tobacco Co., et al., 449 F.Supp. 2d 1 (D.D.C. 2006) at Par. 3301 and Pp. 1605-07.

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[6];

[6]

Note: SAMHSA, Calculated based on data in 2011 National Survey on Drug Use and Health and U. S. Department of Health and Human services (HHA).

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%[7];

[7]

Note: CDC (2013) Youth Risk Behavior, Surveillance Summaries (MMWR 2014: 63 (No SS-04)). Retrieved from: www.cdc.gov.

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 aged 15 to 17, which would improve health across the lifespan and save lives[8];

[8]

Note: IOM (Institute of Medicine) 2015. Public Health Implications of Raising the Minimum Age of Legal Access to Tobacco Products. Washington DC: The National Academies Press, 2015.

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[9];

[9]

Note: CDC (2009), Youth Risk Behavior, Surveillance Summaries (MMWR 2010: 59, 12, note 5). Retrieved from: http:www.cdc.gov/mmwr/pdf/ss/ss5905.pdf.

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%[10];

[10]

Note: Ringel, J., Wasserman, J., & 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.

Whereas 59% of high school smokers in Massachusetts have tried flavor cigarettes or flavored cigars and 25.6% of them are current flavored tobacco product users; 95.1% of twelve- to seventeen-year-olds who smoked cigars reported smoking cigar brands that were flavored[11];

[11]

Note: Massachusetts Department of Public Health, 2015 Massachusetts Youth Health Survey (MYHS); Delneve CD et al., Tob Control, March 2014: Preference for flavored cigar brands among youth, young adults and adults in the USA.

Whereas the Surgeon General found that exposure to tobacco marketing in stores and price discounting increase youth smoking[12];

[12]

Note: 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. 508-530, www.surgeongeneral.gov/library/reports/preventing-youth-tobacco-use/full-report.pdf.

Whereas the federal Family Smoking Prevention and Tobacco Control Act (FSPTCA), enacted in 2009, prohibited candy- and fruit-flavored cigarettes,[13] largely because these flavored products were marketed to youth and young adults,[14] and younger smokers were more likely to have tried these products than older smokers[15], 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;

[13]

Note: 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.

[14]

Note: U.S.C. § 387g.

[15]

Note: 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.

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[16];

[16]

Note: 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.

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[17];

[17]

Note: See fn. 3 above.

Whereas the U.S. Food and Drug Administration and the Tobacco Products Scientific Advisory Committee concluded that menthol flavored tobacco products increased nicotine dependence, decreased success in smoking cessation[18];

[18]

Note: www.fda.gov/downloads/ucm361598.pdf, Https://tobacco,ucsf.edu/tpsac-gave-fda-what-it-needs-to-ban-menthol

Whereas menthol makes it easier for youth to initiate tobacco use[19];

[19]

Note: www.tobaccofreekids.org/assets/factsheet/0390.pdf

Whereas use of e-cigarettes among students in Massachusetts is 20.1%, representing a 78% increase for high schoolers and a 48% increase for middle schoolers from 2017 to 2018[20];

[20]

Note: MA YRBS 2017

Whereas the Massachusetts Department of Environmental Protection has classified liquid nicotine in any amount as an "acutely hazardous waste"[21];

[21]

Note: MA YRBS 2017

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[22];

[22]

Note: 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 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[23];

[23]

Note: See fn. 7.

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[24];

[24]

Note: 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%29004151/abstract.

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 are 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"[25];

[25]

Note: Druzik et al v. Board of Health of Haverhill, 324 Mass. 129 (1949).

Now, therefore, it is the intention of the Chelmsford Board of Health to regulate the sale of tobacco products.

§ 201-83 Authority.

This article is promulgated pursuant to the authority granted to the Chelmsford Board of Health by Massachusetts General Laws Chapter 111, § 31, which states "Boards of health may make reasonable health regulations".

§ 201-84 Definitions.

For the purpose of this article, the following words shall have the following meanings:

ADULT-ONLY RETAIL TOBACCO STORE (also known as RETAIL TOBACCO STORE IN MGL CH. 270)

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 Chelmsford Board of Health.

An establishment that does not share space with another business, that has a separate entrance, that does not sell food, beverages 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 Chelmsford 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.

BLUNT WRAP

Any product made wholly or in part from tobacco, manufactured or packaged with loose and removeable leaves or section of a leaf, or as a hollow tube, that may be used by the consumer to wrap or contain loose tobacco or other fillers.

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.

CHILD-RESISTANT PACKAGE

Packaging intended to reduce the risk of a child ingesting nicotine and that meets the minimum standards of 16 CFR 1700 et seq., pursuant to 15 U.S.C. § 1471 through 1476.

CIGAR

Any roll of tobacco that is wrapped in leaf tobacco or in any substance containing tobacco with or without a tip or mouthpiece that is in a readily usable state immediately when removed from its packaging without any modification, preparation or assembly required as in a kit or roll-your-own package not otherwise defined as a cigarette under Massachusetts General Law, Chapter 64C, § 1, Paragraph 1. Tobacco leaf in such kits or roll-your-own packages shall be considered "blunt wraps" for the purpose of this article.

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.

DISTINGUISHABLE

Perceivable by either the sense of smell or taste.

EDUCATIONAL INSTITUTION

Any public or private college, school, professional school, scientific or technical institution, university or other institution furnishing a program of higher education.

ELECTRONIC NICOTINE DELIVERY SYSTEM

An electronic device, whether for one-time use or reusable, that can be used to deliver nicotine or another substance to a person inhaling from the device including, but not limited to, electronic cigarettes, electronic cigars, electronic cigarillos, electronic pipes, vaping pens, hookah pens and other similar devices that rely on vaporization or aerosolization; provided, however, that "electronic nicotine delivery system" shall also include any noncombustible liquid or gel that is manufactured into a finished product for use in such electronic device; provided further, that "electronic nicotine delivery system" shall also include any component, part or accessory of a device used during the operation of the device even if the part or accessory was sold separately; provided further, that "electronic nicotine delivery system" shall not include a product that has been approved by the United States Food and Drug Administration for the sale of or use as a tobacco cessation product or for other medical purposes and is marketed and sold or prescribed exclusively for that approved purpose.

EMPLOYEE

Any individual who performs services for an employer.

EMPLOYER

Any individual, partnership, association, corporation, trust or other organized group of individuals that uses the services of one or more employees.

FLAVORED TOBACCO PRODUCT

Any tobacco product or component part thereof that contains a constituent that has or produces a characterizing flavor. A public statement, claim or indicia made or disseminated by the manufacturer of a tobacco product, or by any person authorized or permitted by the manufacturer to make or disseminate public statements concerning such tobacco product, that such tobacco product has or produces a characterizing flavor shall constitute presumptive evidence that the tobacco product is a flavored tobacco product.

HEALTH CARE INSTITUTION

An individual, partnership, association, corporation or trust or any person or group of persons that provides health care services and employs health care providers licensed, or subject to licensing, by the Massachusetts Department of Public Health under MGL c. 112 or a retail establishment that provides pharmaceutical goods and services and is subject to the provisions of 247 CMR 6.00. Health care institutions include, but are not limited to, hospitals, clinics, health centers, pharmacies, drug stores, doctor offices, optician/optometrist offices and dentist offices.

LIQUID NICOTINE CONTAINER

A package from which nicotine or other substance in a solution or other form is accessible through normal and foreseeable use by a consumer and that is used to hold a soluble nicotine or other substance in any concentration; provided, however, that "liquid nicotine container" shall not include a sealed, prefilled and disposable container of nicotine or other substance in a solution or other form in which the container is inserted directly into an electronic cigarette, electronic nicotine delivery system or other similar product if the nicotine or other substance in the container is inaccessible through customary or reasonably foreseeable handling or use, including reasonably foreseeable ingestion or other contact by children.

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 this article, or his or her business agent.

PERSON

Any retailer, 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.

RETAILER

A person that operates a retail establishment.

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: (i) exclusively occupies an enclosed indoor space and is primarily engaged in the retail sale of tobacco products for consumption by customers on the premises; (ii) derives revenue from the sale of food, alcohol or other beverages that is incidental to the sale of a tobacco product and prohibits entry to a person under 21 years of age; (iii) prohibits a food or beverage not sold directly by the establishment from being consumed on the premises; (iv) maintains a valid permit for the retail sale of a tobacco product as required to be issued by the Town of Chelmsford; and (v) maintains a valid permit issued by the department of revenue to operate as a smoking bar. "Smoking bar" shall include, but not be limited to, those establishments that are commonly known as "cigar bars" and "hookah bars."

TOBACCO PRODUCT

A product containing or 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, electronic cigarettes, electronic cigars, electronic pipes, electronic nicotine delivery systems or any other similar products that rely on vaporization or aerosolization regardless of nicotine content in the product; provided, however, that "tobacco product" shall also include any component, part or accessory of a tobacco product; and provided further, that "tobacco product" shall not include a product that has been approved by the United States Food and Drug Administration for the sale of or use as a tobacco cessation product or for other medical purposes and is marketed and sold or prescribed exclusively for the approved purpose.

TOBACCO PRODUCT FLAVOR ENHANCER

Any product designed, manufactured, produced, marketed or sold to produce a characterizing flavor when added to any tobacco product.

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.

§ 201-85 No tobacco sales to persons under 21 years old.

No person shall sell or provide a tobacco product to a person under 21 years old.

Required signage.

(1)

All retail establishments, including smoking bars and adult-only retail tobacco stores, shall conspicuously post signage inside the establishment, in the form developed and made available by the Massachusetts Department of Public Health. Such signage shall include: (i) a copy of MGL c. 270, §§ 6 and 6A; (ii) referral information for smoking cessation resources; (iii) a statement that sale of tobacco products, including e-cigarettes, to someone younger than 21 years of age is prohibited; (iv) health warnings associated with using electronic nicotine delivery systems; and (v) except in the case of smoking bars, notice to consumers that the sale of flavored electronic nicotine systems are prohibited at all times. Such signage 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.

(2)

All smoking bars and adult-only retail tobacco stores shall post signage, in the form developed and made available by the Massachusetts Department of Public Health, on the exterior of the door providing entrance to the tobacco retail store or smoking bar and such sign shall not be obstructed from view or placed at a height of less than four feet or greater than nine from the bottom of the door. Such signage shall state that "No person younger than 21 years old is permitted on the premises at any time."

(3)

All smoking bars and those adult-only retail tobacco stores that allow for onsite consumption of tobacco products shall post signage, in the form developed and made available by the Massachusetts Department of Public Health, on the exterior of the door providing entrance to the tobacco retail store or smoking bar and such sign shall not be obstructed from view or placed at a height of less than four feet or greater than nine from the bottom of the door. Such signage shall warn persons entering that smoking and vaping may be present on the premises and provide information concerning the health risks associated with secondhand smoke and the use of tobacco products, including electronic nicotine delivery systems.

Identification. Each person selling or distributing tobacco products or admitting entrance into a smoking bar or adult-only retail tobacco store shall first 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.

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.

§ 201-86 Tobacco product sales permit.

No person shall sell or otherwise distribute tobacco products, as defined herein, within the Town of Chelmsford without first obtaining a tobacco product sales permit issued annually by the Chelmsford Board of Health. Only owners of establishments with a permanent, indoor, nonmobile location in Chelmsford are eligible to apply for a permit and sell tobacco products, as defined herein, at the specified location in Chelmsford.

As part of the tobacco product sales permit application process, the applicant will be provided with the Chelmsford 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 article.

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. Applicant may be asked to provide evidence that a legitimate business transfer or business purchase has taken place.

A separate permit, displayed conspicuously, is required for each retail establishment selling tobacco products, as defined herein, the fee for which shall be determined by the Chelmsford Board of Health annually.

A tobacco product sales permit is nontransferable. 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.

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 article.

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.

A tobacco product sales permit will not be renewed if the permit holder has sold a tobacco product to a person under the age of 21 three times within the previous permit year and the time period to appeal has expired. The violator may request a hearing in accordance with § 201-100, Violations and penalties.

Maximum number of tobacco product sales permits issued to adult-only retail tobacco stores.

(1)

There shall be no more than three tobacco sales permits issued to adult-only retail tobacco stores in Chelmsford as of October 1, 2019. No permit renewal by an adult-only retail tobacco store 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 adult-only retail tobacco store applicants for permits who are applying at a time when the maximum number of permits dedicated for adult-only retail tobacco stores 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 to adult-only retail tobacco stores are either not renewed, revoked, or are returned to the Board of Health. Applicants who purchase or acquire an existing adult-only retail tobacco store 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 operate as an adult-only retail tobacco store, as defined herein.

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.

As of the effective date of this article, no new adult-only retail tobacco stores shall be located within 25 feet of an existing retailer with a tobacco product sales permit.

§ 201-87 Cigar sales regulated.

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 $2.90 or more.

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 $5.80 or more.

This section shall not apply to:

(1)

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 Chelmsford.

The Chelmsford 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 article.

§ 201-88 Sale of flavored tobacco products prohibited.

No person shall possess, hold, keep, sell or distribute or cause to be sold or distributed any flavored tobacco product, as defined herein, or any flavored tobacco product enhancer except in smoking bars and adult-only retail tobacco stores.

§ 201-89 Prohibition of the sale of blunt wraps.

No person or entity shall sell or distribute blunt wraps in Chelmsford.

§ 201-90 Free distribution and coupon redemption.

No person shall:

Distribute, or cause to be distributed, any free samples of tobacco products, as defined herein;

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, as defined herein, without charge or for less than the listed or nondiscounted price; or

Sell a tobacco product, as defined herein, to consumers through any multipack discounts (e.g., "buy two, get one free") or otherwise provide or distribute to consumers any tobacco product, as defined herein, without charge or for less than the listed or nondiscounted price in exchange for the purchase of any other tobacco product.

Subsections B and C shall not apply to products, such as cigarettes, 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 state law.

§ 201-91 Out-of-package sales.

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.

Permit holders who sell liquid nicotine containers must comply with the provisions of 310 CMR 30.000 and must provide the Chelmsford Board of Health with a written plan for disposal of said product, including disposal plans for any breakage, spillage or expiration of the product.

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."

§ 201-92 Self-service displays.

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.

§ 201-93 Vending machines.

All vending machines containing tobacco products, as defined herein, are prohibited.

§ 201-94 Nonresidential roll-your-own machines.

All nonresidential roll-your-own machines are prohibited.

§ 201-95 Prohibition of the sale of tobacco products by health care institutions.

No health care institution located in Chelmsford shall sell or cause to be sold tobacco products, as defined herein. No retail establishment that operates or has a health care institution within it, such as a pharmacy, optician/optometrist, or drug store, shall sell or cause to be sold tobacco products, as defined herein.

§ 201-96 Prohibition of the sale of tobacco products by educational institutions.

No educational institution located in the Town of Chelmsford 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.

§ 201-97 Incorporation of state laws and state regulations.

The sale or distribution to tobacco products, as defined herein, must comply with those provisions found at 940 CMR 21.00 ("Sale and Distribution of Cigarettes, Smokeless Tobacco Products, and Electronic Smoking Devices in Massachusetts").

The sale or distribution of tobacco products, as defined herein, must comply with those provisions found at MGL Ch. 270, §§ 6, 6A, 7, 28, 29 and MGL Ch. 112, § 61A.

§ 201-98 Prohibiting smoking in workplaces and public places.

The Chelmsford Board of Health adopts the Massachusetts Smoke-Free Workplace Law (Massachusetts General Law Chapter 270, § 22) by reference and any future revisions as a local regulation.

Pursuant to Massachusetts General Laws Chapter 270, § 22(j), smoking is also hereby prohibited in the following locations:

(1)

Adult-only retail tobacco store.

A hotel/motel/inn may designate smoking rooms but in no case shall such designated smoking rooms exceed 20% of the total rooms licensed for guests. Nonsmoking rooms shall not be located between smoking rooms. Nonsmoking rooms shall be situated as to utilize physical barriers and ventilation systems to minimize the toxic effect of tobacco smoke on nonsmokers.

No smoking within 30 feet of an entranceway accessible to the public.

Smoking bars are prohibited in the Town of Chelmsford.

§ 201-99 Nicotine content in electronic nicotine delivery systems.

No person shall sell an electronic nicotine delivery system with nicotine content greater than 35 milligrams per milliliter; provided, however, that this subsection shall not apply to adult-only retail tobacco stores. Retailers must obtain from a manufacturer documentation indicating the nicotine content of each of their products sold by the retailer, expressed as milligrams per milliliter [105 CMR 665.010(C)].

§ 201-100 Violations and penalties.

It shall be the responsibility of the establishment, permit holder and/or his or her business agent, and not their employees, to ensure compliance with all sections of this article. For violations of the sections of this article that incorporate MGL Ch. 270, § 6 and 105 CMR 665, the following penalties apply:

(1)

In the case of a first violation, a fine of $1,000.

(2)

In the case of a second violation within 36 months of the date of the current violation, a fine of $2,000 shall be issued 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 thirty-six-month period, a fine of $5,000 shall be issued and the tobacco product sales permit shall be suspended for 30 consecutive business days.

For violations of all other sections specific to the Town of Chelmsford, the violator shall receive:

(1)

In the case of a first violation, a fine of $300; except that in the case of a first violation of the section of this article pertaining to smoking in the workplace and public places, a fine of $200.

(2)

In the case of a second violation within 36 months of the date of the current violation, a fine of $300 and the tobacco product sales permit shall be suspended for seven consecutive business days; except that in the case of a second violation of the section of this article pertaining to smoking in the workplace and public places, a fine of $200.

(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 any section this article within a twenty-four-month period, the Board of Health shall hold a hearing in accordance with this section and may permanently revoke a tobacco product sales permit.

(5)

State and local regulation fines:

Policies Subject to State Law Fines (§ 201-100)		Policies Subject To Local Regulation Fines (§ 201-101)
•	Tobacco and vape sales to persons under the age of 21 (MGL Ch. 270, § 6)	•	Prohibition of the sale of blunt wrap
•	Flavored tobacco product sales restrictions (MGL Ch. 270, § 6)	•	Ban on smoking bars
•	Required retailer signage (105 CMR 665.015)	•	Cigar sales regulated
•	Ban on free distribution (105 CMR 665.025)	•	Tobacco product sales in health care institutions
•	Ban on self-service displays [105 CMR 665.010(B)]	•	Tobacco product sales in educational institutions
•	Ban on out-of-package sales (105 CMR 665.030)	•	Nonresidential roll-your-own machines ban
•	Sales without a local tobacco product sales permit for smoking bars and retail tobacco stores only [105 CMR 665.013(A)]	•	Maximum number of tobacco sales permits
•	Failure to check identification of purchaser (105 CMR 665.020)	•	No new tobacco retailer near schools
•	Nicotine content in electronic nicotine delivery systems (MGL Ch. 270, § 6)	•	Mass. Department of Revenue license(s)
•	Coupon redemption (105 CMR 665.025)	•	Retailer possessing, holding, keeping prohibited flavor products
•	Child-proofed liquid nicotine containers required (105 CMR 665.035)	•	Local tobacco sales permit requirement for retailers who are neither smoking bars nor retail tobacco stores
•	Failure to obtain manufacturer's nonflavored certification [105 CMR 665.010(E)]
•	Failure to obtain manufacturer's nicotine content certification [105 CMR 665.010(C)]
•	Admitting a minor into an adult-only retail tobacco store [105 CMR 665.020(B)]

(6)

Permit suspensions and permit revocations are calculated using the total number of a retailer's violations, combining those violations that receive state-mandated fines and those that receive local fines. Where there is a difference in permit suspension periods, the longer period shall apply.

Failure to cooperate with inspections pursuant to this article shall result in the suspension of the tobacco product sales permit for 30 consecutive business days.

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.

The Chelmsford 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 Chelmsford Board of Health shall suspend or revoke the tobacco product sales permit if the Board of Health finds that a violation of this article 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 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 article.

For purposes of such fines, the Board of Health 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.

§ 201-100.1 Noncriminal disposition.

Whoever violates any provision of this article may be penalized by the noncriminal method of disposition as provided in Massachusetts General Laws, Chapter 40, § 21D where the penalty calls for a monetary fine not exceeding $300.

§ 201-101 Separate violations.

Each day any violation exists shall be deemed to be a separate offense. Each day or portion thereof shall constitute a separate offense. If more than one, each condition violated shall constitute a separate offense.

§ 201-102 Enforcement.

Enforcement of this article shall be by the Chelmsford Board of Health or its designated agent(s).

The Board of Health may enforce this article or enjoin violations thereof through any lawful process, and the election of one remedy by the Board of Health shall not preclude enforcement through any other lawful means.

Any resident who desires to register a complaint pursuant to the regulation may do so by contacting the Chelmsford Board of Health or its designated agent(s) and the Board shall investigate.

§ 201-103 Severability.

If any provision of this article is declared invalid or unenforceable, the other provisions shall not be affected thereby but shall continue in full force and effect.

§ 201-104 Effective date.

This article shall be available in the office of the Chelmsford Board of Health, on the Board of Health webpage, at www.townofchelmsford.us, and in the Town Clerk's office.

This article was amended on 1-6-2020 by a 2-0 vote to add under § 201-98, Paragraph 3, "No smoking within 30 feet of an entranceway accessible to the public."

This article has been amended, voted on, and unanimously approved at a regularly scheduled Board of Health meeting on September 13, 2021, and will go into effect on September 13, 2021. The changes approved at the Board of Health's September 13, 2021, meeting consisted of administrative renumbering; no substantive changes to the regulation were made at this time.

This article has been amended, voted on, and unanimously approved at a regularly scheduled Board of Health meeting on October 4, 2021, and will go into effect on October 4, 2021.