[HISTORY: Adopted by the Board of Health 10-24-2023.[1] Amendments noted where applicable.]
[1]
Editor's Note: This enactment superseded former Ch. 262, Tobacco
Products and Smoking, adopted 4-1-2019.
Whereas, there exists conclusive evidence that tobacco smoking
causes cancer, respiratory and cardiac diseases, negative birth outcomes,
irritations to the eyes, nose and throat;[1]
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]
Whereas, a Federal District Court found that Philip Morris,
R.J. 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]
Whereas, the majority (90%) of smokers begin smoking before
the age of 25, and over five million youth and young adults (ages
25 and under) smoke;[6]
Whereas, cigars and cigarillos can be sold in a single "dose;"
and enjoy a relatively low tax as compared to cigarettes;[7]
Whereas, the Surgeon General found that exposure to tobacco
marketing in stores and price discounting increase youth smoking;[8]
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;[9]
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;[10]
Whereas, use of e-cigarettes among students in Massachusetts
is 30.9% for high schoolers and 10.9% for middle schools, representing
a 20.3% decrease for high schoolers, and a 4.6% decrease for middle
schoolers from 2019 to 2021;[11]
Whereas, the Massachusetts Department of Environmental Protection
has classified liquid nicotine in any amount as an "acutely hazardous
waste";[12]
Whereas, the New England Commission on Higher Education requires
colleges and universities to maintain a safe and healthy environment
for students,[13] which is incompatible with the sale of tobacco and nicotine
products;
Whereas, research indicates that the density and proximity of
tobacco retailers increase smoking behaviors, including number of
cigarettes smoked per day, reduced smoking abstinence during a quit
attempt, and increased smoking prevalence among youth;[14]
Whereas, the density of tobacco retailers near adolescents'
homes has been associated with increased youth smoking rates and initiation
of noncigarette tobacco product use;[15]
Whereas, tobacco retailers are more prevalent in underserved
communities, especially in neighborhoods with a higher proportion
of African American or Hispanic residents;[16]
Whereas, policies to reduce tobacco retailer density have been
shown to be effective and can reduce or eliminate social and racial
inequities in the location and distribution of tobacco retailers;[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."[18]
Now, therefore it is the intention of the Franklin Board of
Health to regulate the sale of tobacco products.
[1]
U.S. Center for Disease Control and Prevention (CDC), Health
Effects of Cigarette Smoking Fact Sheet (2021), https://www.cdc.gov/tobacco/data
statistics/fact_sheets/health_effects/effects_cig_smoking/index.htm.
[2]
CDC, How Tobacco Smoke Causes Disease: The Biology and Behavioral
Basis for Smoking-Attributable Disease, (2010), http://www.cdc.gov/tobacco/data_statistics/sgr/2010/.
[3]
U.S. Dep't of Health and Hum. Servs., The Health Consequences
of Smoking - 50 Years of Progress: A Report of the Surgeon General
at 122 (2014), http://www.surgeongeneral.gov/library/reports/50-years-of-progress/full-report.pdf.
[4]
Id. at 13 (Executive Summary).
[5]
United States v. Philip Morris, 449 F.Supp.2d 1, 1605-07 (D.D.C.
2006).
[6]
Center for Behavioral Health Statistics and Quality, Substance
Abuse and Mental Health Services Administration, Key substance use
and mental health indicators in the United States: Results from the
2020 National Survey on Drug Use and Health (HHS Publication No. PEP21-07-01-003,
NSDUH Series H-56) (2021) (Retrieved from https://www.samhsa.gov/data/).
[7]
CDC, Youth Risk Behavior, Surveillance Summaries (MMWR 2010:
59, 12, note 5) (2009) (Retrieved from: http:www.cdc.gov/mmwr/pdf/ss/ss5905.pdf).
[8]
U.S. Dep't of Health and Human Servs., Preventing Tobacco
Use Among Youth and Young Adults: A Report of the Surgeon General
508, 530 (2012) (www.surgeongeneral.gov/library/reports/preventing-youth-tobacco-use/full-report.pdf).
[9]
Food and Drug Administration, Fact Sheet: Flavored Tobacco
Products (2011), www.fda.gov/downloads/TobaccoProducts/ProtectingKidsfromTobacco/FlavoredTobacco/UCM
183214.pdf; U.S. Dep't of Health and Human Services, Preventing
Tobacco Use Among Youth and Young Adults: A Report of the Surgeon
General, 508, 539 (2012) www.surgeongeneral.gov/library/reports/preventing-youth-tobacco-use/full-report.pdf.
[10]
See fn. 3 at p. 85.
[11]
MA YRBS 2017.
[12]
310 CMR 30.136.
[13]
New England Commission on Higher Education, Standards for
Accreditation at 24 (2021), https://www.neche.org/resources/standards-for-accreditation.
[14]
Ying-Chih Chuang et al., Effects of neighborhood socioeconomic
status and convenience store concentration on individual level smoking,
59(7) J. Epidemiol Community Health 568 (2005) (doi: 10.1136/jech.2004.029041);
Shelley D. Golden et al., County-level associations between tobacco
retailer density and smoking prevalence in the USA, 2012, 17(101005)
Prev. Med. Rep. (Mar. 2020) (doi: 10.1016/j.pmedr.2019.101005); Eric
C. Leas et al., Place-Based Inequity in Smoking Prevalence in the
Largest Cities in the United States, 179(3) JAMA Intern Med., 442
(2019) (doi: 10.1001/jamainternmed.2018.5990); JG Lee et al., Associations
of tobacco retailer density and proximity with adult tobacco use behaviors
and health outcomes: a meta-analysis. Tobacco Control. Published Online
First: 03 September 2021; LR Reitzel et al., The effect of tobacco
outlet density and proximity on smoking cessation. American Journal
of Public Health. 2011, 101(2):315-320; L Henriksen et al., Is adolescent
smoking related to the density and proximity of tobacco retailers
and retail cigarette advertising near schools? Preventive Medicine.
2008, 47(2): 210-4.
[15]
LJ Finan et al., Tobacco Outlet Density and Adolescents'
Cigarette Smoking: A Meta-Analysis, 28(1) Tob Control. 27 (2019) (doi:
10.1136/tobaccocontrol-2017-054065); Abdel Magid HS et al., Tobacco
Retail Density and Initiation of Alternative Tobacco Product Use Among
Teens, 66(4)J. Adolescent Health 423 (2020) (doi: 10.1016/j.jadohealth.2019.09.004).
[16]
Siahpush M. et al., Association of availability of tobacco
products with socio-economic and racial/ethnic characteristics of
neighborhoods, 124(9) Pub. Health 525 (2010) (doi: 10.1016/j. puhe.
2010.04.010); Lee JG, et al., Inequalities in tobacco outlet density
by race, ethnicity and socioeconomic status, 2012, USA: results from
the ASPiRE Study, 71(5) J. Epidemiol Community Health 487 (2017) (doi:
10.1136/jech-2016-208475); D.O. Fakunle et al., Black, White, or Green?
The Effects of Racial Composition and Socioeconomic Status on Neighborhood-Level
Tobacco Outlet Density, Ethn Health. 1 (2019) (doi: 10.1080/13557858.2019.1620178).
[17]
Ribisl KM, et al., Reducing Disparities in Tobacco Retailer
Density by Banning Tobacco Product Sales Near Schools, 19(2) Nicotine
Tobacco Res. 239(2017) (doi: 10.1093/ntr/ntw185); HG, Henry et al.,
Tobacco Retail Licensing and Density 3 Years After License Regulations
in Philadelphia, Pennsylvania (2012-2019), 110 (4) Am J. Pub. Health
547 (2020) (doi: 10.2105/AJPH. 2019.305512); A.E. Myers et al., A
comparison of three policy approaches for tobacco retailer reduction,
74 Prev. Med. 67(2015) (doi: 10.1016/j.ypmed. 2015.01.025).
[18]
Druzik et al v. Board of Health of Haverhill, 324 Mass. 129
(1949).
This regulation is promulgated pursuant to the authority granted
to the Franklin Board of Health by MGL c. 111, § 31, which
states: "Boards of health may make reasonable health regulations."
For the purpose of this regulation, the following words shall
have the following meanings:
An establishment that is not adjoined, that has a separate
entrance not used by any other retailer, that does not sell food,
beverages or alcohol, that does not have a 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 Franklin
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.
Any product made wholly or in part from a tobacco product,
manufactured or packaged with loose and removable leaves or sections
of a leaf, or as a hollow tube, that may be used by the consumer to
wrap or contain loose tobacco or other fillers.
An individual who has been designated by the owner or operator
of any establishment to be the manager or otherwise in charge of said
establishment.
A distinguishable taste or aroma, other than the taste or
aroma of tobacco, imparted or detectable either prior to or during
consumption of a tobacco product or component part thereof, including,
but not limited to, tastes or aromas relating to any fruit, chocolate,
vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol,
mint, wintergreen, herb or spice; provided, however, that no tobacco
product shall be determined to have a characterizing flavor solely
because of the provision of ingredient information or the use of additives
or flavorings that do not contribute to the distinguishable taste
or aroma of the product.
Packaging intended to reduce the risk of a child ingesting
nicotine and that meets the minimum standards of 16 CFR 1700.1 et
seq., pursuant to 15 U.S.C. §§ 1471 through 1476.
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 MGL c. 64C, § 1, Paragraph 1. Tobacco
leaf in kits or roll-your-own packages shall be considered "blunt
wraps" for the purpose of this regulation.
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.
Any card, paper, note, form, statement, ticket or other communication
distributed for commercial or promotional purposes to be later surrendered
by the bearer so as to receive an article, service or accommodation
without charge or at a discount price.
Perceivable by either the sense of smell or taste.
Any public or private college, school, professional school,
scientific or technical institution, university or other institution
furnishing a program of higher education.
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.
Any individual who performs services for an employer.
Any individual, partnership, association, corporation, trust
or other organized group of individuals that uses the services of
one or more employees.
Any tobacco product or component part thereof that contains
a constituent that has or produces a characterizing flavor. A public
statement, claim or indicia made or disseminated by the manufacturer
of a tobacco product, or by any person authorized or permitted by
the manufacturer to make or disseminate public statements concerning
such tobacco product, that such tobacco product has or produces a
characterizing flavor shall constitute presumptive evidence that the
tobacco product is a flavored tobacco product.
An individual, partnership, association, corporation or trust
or a person or group of persons who provides health-care services
and employs health-care providers subject to licensing under this
chapter; or a retail establishment that sells pharmaceutical goods
and services and is subject to regulation by the Board of Registration
in Pharmacy. Health-care institutions include but are not limited
to hospitals, clinics, health centers, pharmacies, drug stores, doctors'
offices, and dental offices.
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.
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.
A written document from a manufacturer that certifies which
of each of its products are not flavored, as defined under Massachusetts
law and these regulations. Manufacturer documentation shall also mean
a written document from a manufacturer that certifies the nicotine
content expressed as milligrams per milliliter for each of its electronic
nicotine delivery system products.
A mechanical device made available for use (including to
an individual who produces cigars, cigarettes, smokeless tobacco,
pipe tobacco, or roll-your-own tobacco solely for the individual's
own personal consumption or use) that is capable of making cigarettes,
cigars or other tobacco products. RYO machines located in private
homes used for solely personal consumption are not nonresidential
RYO machines.
Any person engaged in the sale or distribution of tobacco
products who applies for and receives a tobacco product sales permit
or any person who is required to apply for a tobacco product sales
permit pursuant to these regulations, or his or her business agent.
Any 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.
A physical place of business or a section of a physical place
of business in which a tobacco product is offered for sale to consumers.
A person that operates a retail establishment.
Sheets, rolls, tubes, cones, wraps, or leaves, that do not
contain tobacco, which are used for rolling cigarettes either by hand
or with a roll-your-own machine.
Public or private elementary or secondary schools.
Any display including an unlocked humidor regardless of size
from which customers may select a tobacco product, as defined herein,
without assistance from an employee or store personnel.
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 Franklin; and v) maintains
a valid license issued by the Department of Revenue to operate as
a smoking bar. "Smoking bars" shall include, but not be limited to,
those establishments that are commonly known as "cigar bars," "hookah
bars" and "vape bars."
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.
Any product designed, manufactured, produced, marketed or
sold to produce a characterizing flavor when added to any tobacco
product. A rolling paper with a characterizing flavor shall be considered
a tobacco product flavor enhancer.
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 available, as defined
herein.
A.
No person shall sell or provide a tobacco product to a person under
21 years old.
B.
Required signage:
(1)
All retail establishments, including adult-only retail tobacco stores,
shall conspicuously post signage, in the form developed and made available
by the Massachusetts Department of Public Health (DPH) and made available
from the Franklin Board of 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) notice to consumers that the sale
of flavored tobacco products 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.
(2)
All smoking bars and adult-only retail tobacco stores shall post
signage, in the form developed and made available by DPH, 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)
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 DPH, on the exterior of the door providing entrance,
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.
C.
Identification:
(1)
Each person selling or distributing tobacco products shall first
verify the age of every purchaser of tobacco products by means of
valid government-issued photographic identification containing the
bearer's date of birth that the purchaser is 21 or older.
(2)
Each person admitting entrance into an adult-only retail tobacco
store shall first verify the age of every person entering by means
of valid government-issued photographic identification containing
the bearer's date of birth that the purchaser is 21 or older.
A.
No person shall sell or otherwise distribute or offer for sale tobacco
products, as defined herein, within the Town of Franklin without first
obtaining a tobacco product sales permit issued annually by the Franklin
Board of Health. Only owners of establishments with a permanent, indoor,
nonmobile location in Franklin are eligible to apply for a permit
and sell tobacco products, as defined herein, at the specified location
in Franklin.
B.
As part of the tobacco product sales permit application process,
the applicant will be provided with the Franklin regulation. Each
applicant is required to sign a statement declaring that the applicant
has read said regulation and that the applicant is responsible for
instructing any and all employees who will be responsible for tobacco
product sales regarding federal, state and local laws about the sale
of tobacco and this regulation.
C.
Each applicant who sells tobacco products is required to provide
proof of current tobacco retailer licenses issued by the Massachusetts
Department of Revenue, when required by state law, before a tobacco
product sales permit can be issued. Applicants may be asked to provide
evidence that a legitimate business transfer or business purchase
has taken place.
D.
A separate permit, displayed conspicuously, is required for each
retail establishment selling tobacco products, as defined herein.
The fee shall be determined by the Franklin Board of Health annually.
All required Massachusetts Department of Revenue licenses related
to the sale of tobacco products, as defined herein, must also be displayed
conspicuously at the retail establishment.
E.
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.
Neither the permit holder nor their employees shall interfere with
or obstruct an inspection.
F.
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.
G.
Maximum number of tobacco product sales permits.
(1)
At any given time, there shall be no more than 32 tobacco product
sales permits issued in Franklin, of which only five can be adult-only
retail tobacco stores. Any permit holder who has failed to renew their
permit within 30 days of expiration will be treated as a first-time
permit applicant.
(2)
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.
(3)
Applicants on the waiting list shall be responsible for ensuring
up-to-date contact information has been provided to the Franklin Board
of Health.
H.
Sale of business:
(1)
Notwithstanding a cap on the total number of permits holders, the
seller of a business holding a valid tobacco sales permit may transfer
said permit to a bona fide purchaser for value of the business, subject
to approval by the Board of Health, as required herein;
(2)
The purchaser shall apply for the transfer of the permit no later
than 30 calendar days after said purchase. The purchaser shall not
sell tobacco products until the transfer of the permit is approved
by the Board of Health; and
(3)
All fines and suspensions of the previous owner must be satisfied
prior to the sale.
Smoking bars are prohibited in the Town of Franklin.
A.
No person shall sell or distribute or cause to be sold or distributed
a single cigar unless such cigar is priced for retail sale at $2.90
or more.
B.
No person shall sell or distribute or cause to be sold or distributed
any original factory-wrapped package of two or more cigars, unless
such package is priced for retail sale at $5.80 or more.
C.
This section shall not apply to a person or entity engaged in the
business of selling or distributing cigars for commercial purposes
to another person or entity engaged in the business of selling or
distributing cigars for commercial purposes with the intent to sell
or distribute outside the boundaries of Franklin.
D.
The Franklin 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.
A.
No person, as defined herein, 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.
B.
Retailers must obtain manufacturer documentation certifying that
all products possessed, held, kept, sold or distributed by the retailer
do not meet the definition of a flavored tobacco product or tobacco
product flavor enhancer [105 CMR 665.010(E)].
A.
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.
B.
Retailers must obtain manufacturer documentation verifying that all
electronic nicotine delivery products possessed, held, kept, sold
or distributed by the retailer indicating the nicotine content expressed
as milligrams per milliliter for each electronic nicotine delivery
system to be sold in the retail establishment [105 CMR 665.010(C)].
No person or entity shall sell or distribute blunt wraps in
Franklin.
No person shall:
A.
Distribute, or cause to be distributed, any free samples of tobacco
products, as defined herein;
B.
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
C.
Sell a tobacco product, as defined herein, through any multipack
discount (e.g., "buy-two-get-one-free") if the sale reduces the price
of each back to less than the listed or nondiscounted price.
A.
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, as defined herein, shall
possess, hold, keep, sell or distribute or cause to be possessed,
held, kept, sold or distributed any cigarette package that contains
fewer than 20 cigarettes, including single cigarettes.
B.
Permit holders who sell liquid nicotine containers must comply with
the provisions of 310 CMR 30.000, Massachusetts Hazardous Waste Regulations.
C.
All permit holders must comply with 940 CMR 21.05 which reads: "It
shall be an unfair or deceptive act or practice for any person to
sell or distribute nicotine in a liquid or gel substance in Massachusetts
after March 15, 2016, unless the liquid or gel product is contained
in a child-resistant package that, at a minimum, meets the standard
for special packaging as set forth in 15 U.S.C. §§ 1471
through 1476 and 16 CFR § 1700 et seq."
D.
No permit holder shall refill a cartridge that is prefilled with
nicotine in a liquid or gel substance and sealed by the manufacturer
and not intended to be opened by the consumer or retailer.
All vending machines containing tobacco products, as defined
herein, are prohibited.
All nonresidential roll-your-own machines are prohibited.
No health-care institution located in Franklin 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.
A.
The sale or distribution of tobacco products, as defined herein,
must comply with state statutes, including but not limited to those
provisions found at MGL c. 270, §§ 6, 6A, 7, 28, and
29 and MGL c. 112, § 61A.
B.
The sale or distribution of tobacco products, as defined herein,
must comply with state regulations, including but not limited to those
provisions found at 940 CMR 21.00, Sale and Distribution of Cigarettes,
Smokeless Tobacco Products, and Electronic Smoking Devices in Massachusetts;
940 CMR 22.00, Sale and Distribution of Cigars in Massachusetts; and
105 CMR 665.00, Minimum Standards for Retail Sale of Tobacco and Electronic
Nicotine Delivery Systems.
A.
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 the violator shall receive:
(1)
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 665.040(D), for five consecutive business
days.
(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.
B.
In the case of four violations or repeated, egregious violations
of any section of this regulation, as determined by the Board of Health
within a thirty-six-month period, the Board of Health [shall/may][1] hold a hearing in accordance with this regulation and,
after such hearing, may permanently revoke a Tobacco Sales Permit.
[1]
Editor's Note: So in original.
C.
Failure to cooperate or interfere with inspections pursuant to this
regulation shall result in the suspension of the tobacco product sales
permit for 30 consecutive business days.
D.
In addition to the monetary fines set above, any permit holder who
engages in the sale or distribution of tobacco products while their
permit is suspended shall be subject to the suspension of all Board
of Health issued permits for 30 consecutive business days. Multiple
suspensions of a tobacco product sales permit shall not be served
concurrently.
E.
The Franklin 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 Franklin Board of Health shall suspend or revoke the
tobacco product sales permit if the Board of Health finds that a violation
of this regulation occurred. All tobacco products, 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 regulation.
F.
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.
Each day any violation exists shall be deemed to be a separate
offense.
A.
Enforcement of this regulation shall be by the Franklin Board of
Health or its designated agent(s).
B.
The Board of Health may enforce these regulations 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.
C.
Any resident who desires to register a complaint pursuant to the
regulation may do so by contacting the Franklin Board of Health or
its designated agent(s), and the Board shall investigate.
If any provision of this regulation is declared invalid or unenforceable,
the other provisions shall not be affected thereby but shall continue
in full force and effect.
This regulation shall take effect on January 1, 2024.
