Chapter 158 Smoking; Restricting Sale of Tobacco Products

Whereas there exists conclusive evidence that tobacco smoking causes cancer, respiratory and cardiac diseases, negative birth outcomes, irritations to the eyes, nose and throat [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 [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/.]; and the Surgeon General found that nicotine exposure during adolescence, a critical window for brain development, may have lasting adverse consequences for brain development, [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.]; and that it is addiction to nicotine that keeps youth smoking past adolescence, [Note: Id. at Executive Summary p. 13. Retrieved from: http://www.surgeongeneral.gov/library/reports/50- years-of-progress/exec-summary.pdf];

ADULT-ONLY RETAIL TOBACCO STORE (also known as "RETAIL TOBACCO STORE" in MGL c. 270)

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 [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.]

(4)

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 [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).];

(5)

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 [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.];

(6)

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% [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.]

(7)

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

(8)

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

(9)

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 [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.];

(10)

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. [Note: See fn. 3 at p. 85.];

(11)

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

(12)

Whereas menthol makes it easier for youth to initiate tobacco use [Note: www.tobaccofreekids.org/assets/factsheet/0390.pdf];

(13)

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 [Note: MA YRBS 2017];

(14)

Whereas the Massachusetts Department of Environmental Protection has classified liquid nicotine in any amount as an acutely hazardous waste [Note: 310 CMR 30.136];

(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 [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%2900415-1/abstract.]

(16)

Whereas educational institutions that sell tobacco products to a younger population, who is particularly at risk for becoming smokers is incompatible with the mission of educational institutions that educate a younger population about social, environmental and health risks and harms; and

(17)

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

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

§ 158-2 Authority.

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

§ 158-3 Definitions.

In these regulations, the following terms have the meanings indicated:

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 Williamstown 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.

BAR

An establishment or an area within a restaurant, hotel, or other establishment.

Which is primarily devoted to the serving of alcoholic beverages for consumption on the premises;

In which the service of food is secondary to the consumption of alcoholic beverages.

BLUNT WRAP

Any tobacco product manufactured or packaged as a wrap or as a hollow tube made wholly or in part from tobacco that is designed or intended to be filled by the consumer with loose tobacco or other fillers regardless of any content.

BOARD

The Williamstown Board of Health or its designated agents.

BOARD OF HEALTH

The Williamstown Board of Health.

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, 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.

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, and is not otherwise defined as a cigarette under Massachusetts General Law, Chapter 64C, Section 1, Paragraph 1. Tobacco leaf in such kits or roll-your-own packages shall be considered blunt wraps for the purpose of this regulation.

COLLEGE

An educational facility offering education at above the secondary school level.

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 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.

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.

ENCLOSED EXTERIOR AREA

If the exterior/outdoor space has a structure capable of being enclosed by walls or covers, regardless of the materials or the removable nature of the walls or covers, the space will be considered enclosed when the walls or covers are in place. All outdoor spaces shall be physically separated from an enclosed work space. If doors, windows, sliding or folding windows or doors or other fenestrations form any part of the border to the outdoor space, the openings shall be closed to prevent the migration of smoke into the enclosed workspace. If the windows, sliding or folding windows or doors or other fenestrations are opened or otherwise do not prevent the migration of smoke into the work space, the outdoor space shall be considered an extension of the enclosed work space and subject to this chapter.

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.

FOOD ESTABLISHMENT

An establishment permitted by the Board of Health under the provisions of 105 CMR 590.000, State Sanitary Code, Chapter X, Minimum Sanitation Standards for Food Establishments, as currently promulgated or promulgated in the future.

FREESTANDING DISPLAY

Any display of tobacco or tobacco products which is not attached to or on top of a checkout counter, or where distribution of the tobacco products is not directly controlled by an employee.

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 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 stated price, and before the application of any discounts or coupons.

MEMBERSHIP ASSOCIATION (also known as a "PRIVATE CLUB")

A not-for-profit entity that has been established and operates for a charitable, philanthropic, civic, social, benevolent, educational, religious, athletic, recreation or similar purpose, and is comprised of members who collectively belong to: (i) a society, organization or association of a fraternal nature that operates under the lodge system, and having one or more affiliated chapters or branches incorporated in any state; or (ii) a corporation organized under MGL c. 180; or (iii) an established religious place of worship or instruction in the commonwealth whose real or personal property is exempt from taxation; or (iv) a veterans' organization incorporated or chartered by the Congress of the United States, or otherwise having one or more affiliated chapters or branches incorporated in any state. Except for a religious place of worship or instruction, an entity shall not be a membership association for the purpose of this definition, unless individual membership containing not less than full membership costs and benefits is required for all members of the association for a period of not less than 90 days.

NONRESIDENTIAL ROLL-YOUR-OWN (RYO) MACHINE

A mechanical device made available for use (including to an individual who produces cigars, cigarettes, smokeless tobacco, pipe tobacco, or roll-your-own tobacco solely for the individual's own personal consumption or use) that is capable of making cigarettes, cigars or other tobacco products. RYO machines located in private homes used for solely personal consumption are not nonresidential RYO machines.

PERMIT HOLDER

Any person engaged in the sale or distribution of tobacco products who applies for and receives a tobacco product sales permit or any person who is required to apply for a tobacco product sales permit pursuant to these regulations, or his or her business agent.

PERSON

Any retailer, 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 TRANSIT FACILITY

A bus, taxi, or other means of public transit while operating within the limits of Williamstown.

RETAIL FOOD ESTABLISHMENT

An establishment commonly known as a "supermarket" or "grocery store" in which the primary activity is the sale of food items to the public for off-premises consumption.

RETAIL TOBACCO STORE

An establishment that is not required to possess a retail food permit whose primary purpose is to sell or offer for sale, but not for resale, tobacco products and tobacco paraphernalia, in which the sale of other products is merely incidental, and in which the entry of persons under the 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 Town of Williamstown Board of Health. Retail tobacco stores will not sell any food products.

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 Williamstown Board of Health; 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," "hookah bars" and "vape 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.

TOBACCO SALES CERTIFICATION TRAINING

A certification training program, approved by the Tri-Town Board of Health or other boards of health that require the training which must be successfully completed by all tobacco product sales clerks engaged in the sale or distribution of tobacco products directly to the consumer. For the purposes of this section, the content of the tobacco product sales certification training program must be approved by the Board of Health.

TOBACCO SALES CLERK

An individual, employer, employee, retail store manager, the owner or operator of any establishment engaged in the sale or distribution of tobacco products directly to consumers who can produce documentation that he/she maintains a valid tobacco product sales certification.

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, any other tobacco products.

WORKPLACE

An area within a structure or portion thereof in which two or more employees perform services for their employer. The word includes areas such as an employee lounge, dining facilities, restroom, conference room, hallway, stairway, and entranceway.

§ 158-4 Smoking in public places.

Smoking prohibited. Smoking is prohibited in the following public places:

A hallway, elevator, entranceway, restroom, lobby or waiting area of a museum, library, clinic, nursing home, auditorium, long-term health care facility, indoor sports arena, theater, inn, hotel, motel, restaurant, college or municipal building.

An auditorium, except as provided in § 158-5E; the performance area of an indoor sports arena; or the galleries or display areas of a museum.

A public transit facility.

(4)

A food establishment, or bar, in any area (interior or exterior) where food or beverage is received, stored, prepared, served, or consumed.

(5)

A licensed child-care facility.

(6)

A school.

(7)

A room or hall used for public meetings, while being so used.

(8)

The public areas of a building owned or maintained by the Town of Williamstown and used by the general public.

Smoking restricted. Unless prohibited by Subsection A above, or pursuant to § 158-6 below, in the following public places, smoking is permitted in a designated exterior unenclosed smoking area:

A museum, library, clinic, nursing home, auditorium, long-term health care facility, indoor sports arena, theater, inn, hotel, motel or college.

§ 158-5 Exempt places.

The following places are not subject to the smoking prohibitions or restrictions of these regulations:

A private club.

A private residence.

A hotel or motel room rented to a guest and designated as permitting smoking.

An adult-only retail tobacco store.

The stage of a theatrical performance, if smoking is part of the theatrical production.

§ 158-6 Smoking in workplaces.

Smoking prohibition. Smoking in the workplace is prohibited, except in specifically designated smoking areas permitted pursuant to Subsection B of this section.

Designated smoking areas. An employer may designate unenclosed outdoor areas in which employees may smoke.

Responsibility. It is unlawful for any person having control of any premises upon which smoking is prohibited pursuant to Subsection A knowingly to permit, or for his or her agent or employee knowingly to permit, a violation of this regulation.

§ 158-7 Implementation.

The proprietor or other person in charge of a place subject to these regulations shall:

Conspicuously post a "no smoking" sign or international symbol as appropriate at the entrance to and within every area in which smoking is permitted or prohibited by these regulations.

Ask a person who is smoking in a nonsmoking area either to refrain from smoking or to move to a smoking area.

§ 158-8 No tobacco sales to persons under age 21.

Use any other appropriate and reasonable means to implement these regulations.

Nothing in these regulations prohibits an employer, or the proprietor or other person in charge of a place, establishment, or facility, from prohibiting smoking within the entire place, establishment, or facility

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

Required signage.

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 is 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.

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."

All smoking bars and those adult-only retail tobacco stores that allow for on-site 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 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.

§ 158-9 Tobacco product sales permit.

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

As part of the tobacco product sales permit application process, the applicant will be provided with the Williamstown Board of Health regulations. 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.

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.

A separate permit, displayed conspicuously, is required for each retail establishment selling tobacco products, as defined herein. The fee shall be determined by the Williamstown 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.

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

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.

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 Subsection F of the Violations Section.[1]

[1]

Editor's Note: See § 158-24, Enforcement; violations and penalties.

Certification.

No person shall sell any tobacco product without first successfully completing an approved tobacco sales certification training and obtaining confirmation of certification in which the training proctor is the Tri-Town Health Department.

§ 158-10 Maximum number of tobacco product sales permits.

New employees have 30 consecutive days to successfully complete an approved tobacco product sales certification training. Employers must provide documentation confirming new hire if requested by Board of Health.

At any given time, there shall be no more than six tobacco product sales permits issued in Town of Williamstown. 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.

A tobacco product sales permit shall not be issued to any new applicant for a retail location within 500 feet of a public or private elementary or secondary school as measured by a straight line from the nearest point of the property line of the school to the nearest point of the property line of the site of the applicant's business premises.

Applicants who purchase an existing business that holds a current tobacco product sales permit at the time of the sale of said business must apply within 60 days of such sale for the permit held by the seller if the buyer intends to sell tobacco products, as defined herein.

As of August 1, 2023, any permit not surrendered, revoked or renewed either because a retailer no longer sells tobacco products, as defined herein, or because a retailer closes the retail business, shall be returned to the Williamstown Board of Health and shall be permanently retired by the Board of Health and the total allowable number of tobacco product sales permits under Subsection A shall be reduced by the number of the retired permits.

After October 1, 2018, all new permits, or permits reinstated following a suspension, will be restricted to the sale of cigarettes, cigars, pipe and cigarette tobacco, chewing tobacco, fine cut oral leaf tobacco (commonly known as "skoal," or "smokeless tobacco") and the associated papers and implements for the smoking and oral use of leaf tobacco. New or reinstated permits are prohibited from selling any liquids containing nicotine, or electronic devices used to deliver nicotine by vaporization or aerosol inhalation or ingestion (commonly known as "electronic cigarettes," "vapes" or "vaping").

Subsection E does not apply to retail tobacco stores as defined in § 158-3.

§ 158-11 Prohibition of smoking bars.

Smoking bars are prohibited in the Williamstown Board of Health jurisdiction.

§ 158-12 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 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 Williamstown Board of Health jurisdiction.

The Williamstown 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.

§ 158-13 Sale of flavored tobacco products prohibited.

No person shall possess, hold, keep, sell or distribute or cause to be possessed, held, kept, sold or distributed any flavored tobacco product, as defined herein, or any flavored tobacco product enhancer, as defined herein. Retailers must obtain from a manufacturer documentation certifying that products sold by the retailer, do not meet the definition of a flavored tobacco product or tobacco product flavor enhancer (105 CMR 665.010).

§ 158-14 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 or smoking bars. 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)].

§ 158-15 Prohibition of sale of blunt wraps.

No person or entity shall sell or distribute blunt wraps in the Williamstown Board of Health jurisdiction.

§ 158-16 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 multi-pack 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.

§ 158-17 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 Williamstown 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."

No permit holder shall refill a catridge that is prefilled and sealed by the manufacturer and not intended to be opened by the consumer or retailer.

§ 158-18 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.

§ 158-19 Vending machines.

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

§ 158-20 Nonresidential roll-your-own machines.

All nonresidential roll-your-own machines are prohibited.

§ 158-21 Prohibition of sale of tobacco products by health care institutions.

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

§ 158-22 Prohibition of sale of tobacco products by educational institutions.

No educational institution located in Williamstown 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.

§ 158-23 Incorporation of state laws and state regulations.

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

The sale or distribution of 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) and 940 CMR 22.00 (Sale and Distribution of Cigars in Massachusetts).

§ 158-24 Enforcement; 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 regulation. For violations of the sections of this regulation that incorporate MGL c. 270, § 6, and 105 CMR 665, the following penalties apply:

In the case of a first violation, a fine of $1,000 shall be issued and, additionally, if the violation is a sale of a tobacco product to a person under the age of 21, the tobacco product sales permit shall be suspended per 105 CMR 040(d), for up to 30 consecutive business days but no less than one business day.

In the case of a second violation within 36 months of the date of the current violation, a fine of $2,000 and the tobacco product sales permit shall be suspended per 105 CMR 040(d), for up to 30 consecutive business days but no less than one business day.

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 per 105 CMR 040(d), for up to 30 consecutive business days but no less than one business day.

For violations of all other sections specific to the Williamstown Board of Health:

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:

(a)

In the case of a first violation, a fine of $100.

(b)

In the case of a second violation within 36 months of the current violation, a fine of $200 and the tobacco product sales permit shall be suspended for seven consecutive business days.

(c)

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.

(d)

In the case of further violations or repeated, egregious violations of this regulation, the Board of Health may revoke a tobacco product sales permit.

The Board shall have the authority to enforce these regulations by:

Inspection and investigation.

The issuance of violation notices and administrative orders, and Board of Health action, including, but not limited to: suspension, revocation, or restriction of tobacco products for sale.

Civil and criminal court actions.

Whoever, himself or by his servant or agent or as the servant or agent of any other person or firm or corporation, violates any of the provisions of these regulations is subject to a fine as stated in Chapter 146, Local Fines, of the Code of the Town of Williamstown. Each day of violation, after written notice, is a separate violation.

Tobacco product sales permit violations.

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

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.

The 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 Board of Health finds that a violation of this regulation occurred. For purposes of such suspensions or revocations, 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.

§ 158-30 State law fines and regulation fines.

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.

§ 158-25 Appeals.

Any person or persons aggrieved by any order issued under this chapter may appeal by filing a written petition for hearing to the Board of Health, which must be received within 10 days after the day the order was served.

The hearing shall be commenced not later than 14 days after the receipt of a petition.

At the hearing, the petitioner and other affected parties shall be given an opportunity to be heard, to present witnesses or documentary evidence, and to show why an order should be modified or withdrawn. Failure to hold a hearing within the time period specified herein shall not affect the validity of any order.

The Board of Health shall sustain, modify, or withdraw the order and shall inform the petitioner.

Any person aggrieved by the decision of the Board of Health may seek relief therefrom in any court of competent jurisdiction, as provided by the laws of this commonwealth.

§ 158-26 Amendments.

These regulations or any portion of them may be amended, supplemented, or repealed from time to time by the Board of Health, with notice as provided by law, on the Board's own motion or by petition.

§ 158-27 Repealer.

As of the effective date of these regulations, all prior Williamstown Board of Health smoking regulations are repealed.

§ 158-28 Severability.

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.

§ 158-29 Effective date.

The effective date of these regulations is August 1, 2023.

Policies subject to state law fines MGL c. 270, § 6 (§ 158-24A).

Tobacco and vape sales to persons under the age of 21 (MGL c. 270, § 6).

Flavored tobacco product sales restrictions (MGL c. 270, § 6).