Chapter 395 Tobacco and Nicotine Products

There exists conclusive evidence that tobacco smoking causes cancer, respiratory and cardiac diseases, negative birth outcomes, and irritations to the eyes, nose and throat;[1] and

[1]

Center for Disease Control and Prevention, (CDC) (2012), Health Effects of Cigarette Smoking Fact Sheet. Retrieved from: http://www.cdc.gov/tobacco/data_statistice/fact_sheets/health_effects/effects_cig_smoking/index.htm.

Among the 18.1% of students nationwide who currently smoke cigarettes and are less than 18 years old, 14.1% usually obtain them by buying them in a store (i.e., convenience store, supermarket, or discount store) or gas station; and among 11th grade males this rate was nearly 30%;[2] [3] and

[2]

CDC (2009), Youth Risk Behavior, Surveillance Summaries (Morbidity and Mortality Weekly Report (MMWR) 2010: 59, 11 (No. SS-55). Retrieved from: http://www.cdc.gov/HealthyYouth/yrbs/index.htm.

[3]

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

The U.S. Department of Health and Human Services has concluded that nicotine is as addictive as cocaine or heroin[4] and the Surgeon General has found that nicotine exposure during adolescence, a critical window for brain development, may have lasting adverse consequences for brain development,[5] and that it is addiction to nicotine that keeps youth smoking past adolescence;[6] and

[4]

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/.

[5]

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.

[6]

Health and Human Services. 2014. The Health Consequences of Smoking — 50 Years of Progress: A Report of the Surgeon General, 2014 U.S. Surgeon General's Report Atlanta: U.S. National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, Executive Summary p. 13. Retrieved from: http://www.surgeongeneral.gov/library/reports/50-years-of-progress/exec-summary.pdf.

ADULT-ONLY RETAIL TOBACCO STORE

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;[7] and

[7]

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.

(5)

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;[8] and

[8]

SAMHSA, Calculated based on data in 2011 National Survey on Drug Use and Health and U.S. Department of Health and Human Services (HHA). The Health Consequences of Smoking — 50 Years of Progress. A Report of the Surgeon General, 2014.

(6)

The Institute of Medicine (IOM) has concluded that raising the minimum age of legal access to tobacco products to 21 years old will reduce tobacco initiation, particularly among adolescents 15 to 17 years old, as well as improve health across the lifespan and save lives;[9] and

[9]

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.

(7)

The sales of flavored little cigars increased by 23% between 2008 and 2010,[10] and many non-cigarette tobacco products, such as cigars and cigarillos, can be sold in a single dose, enjoy a relatively low tax as compared to cigarettes, are available in fruit, candy and alcohol flavors, and are popular among youth;[11] and

[10]

Delnevo, C., Flavored Little Cigars memo, September 21, 2011, from Neilson market scanner data.

[11]

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

(8)

Although the Federal Family Smoking Prevention and Tobacco Control Act (FSPTCA), enacted in 2009, prohibited candy- and fruit-flavored cigarettes,[12] largely because these flavored products were marketed to youth and young adults,[13] and younger smokers were more likely to have tried these products than older smokers,[14] neither federal nor Massachusetts law currently restricts the sales of flavored non-cigarette tobacco products, such as cigars, cigarillos, smokeless tobacco, hookah tobacco, and electronic devices, nor the nicotine solutions used in these devices; and

[12]

21 U.S.C. § 387g.

[13]

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]

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/preventingyouth-tobacco-use/full-report.pdf.

(9)

The U.S. Food and Drug Administration and the U.S. Surgeon General have stated that flavored tobacco products are considered to be starter products that help establish smoking habits that can lead to long-term addiction;[15] and

[15]

Food and Drug Administration. 2011. Fact Sheet: Flavored Tobacco Products, www.fda.gov/downloads/TobaccoProducts/ProtectingKidsfromTobacco/Flavored.Tobacco/UCM183214.pdf.

(10)

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;[16] and

[16]

Health and Human Services. 2014. The Health Consequences of Smoking — 50 Years of Progress: A Report of the Surgeon General, 2014 Atlanta: U.S. National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, p. 85.

(11)

The U.S. Centers for Disease Control and Prevention has reported that electronic cigarette use among middle and high school students tripled from 2013 to 2014;[17] and

[17]

Centers for Disease Control & Prevention. 2015. - Tobacco Use Among Middle and High School Students — United States, 2011-2014, 11 Morbidity and Mortality Weekly Report (MMWR) 64(14): 381-385.

(12)

Nicotine solutions consumed via electronic or battery-operated delivery smoking devices, such as electronic cigarettes, are sold in dozens of flavors that appeal to youth, such as cotton candy and bubble gum;[18] and

[18]

Cameron JM, Howell DN, White JR, et al. 2013. - Variable and Potentially Fatal Amounts of Nicotine in E-cigarette Nicotine Solutions. Tobacco Control. [Electronic publication ahead of print], http://tobaccocontrol.bmj.com/content/early/2013/02/12/tobaccocontrol-2012-050604.full; U.S. Department of Health and Human Services. 2012. Preventing Tobacco Use Among Youth and Young Adults: A Report of the Surgeon General. Atlanta: U.S. National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, p. 549, www.surgeongeneral.gov/library/reports/preventing-youth-tobacco-use/full-report.pdf.

(13)

The Massachusetts Department of Environmental Protection has classified liquid nicotine in any amount as an acutely hazardous waste (310 CMR 30.136); and

(14)

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;[19] and

[19]

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.

(15)

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 was 10.8% in 2013;[20] and

[20]

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

(16)

Data from a 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;[21] and

[21]

King BA, Tynan MA, Dube SR, et al. 2013. — Flavored-Little-Cigar and Flavored-Cigarette Use Among U.S. Middle and High School Students. Journal of Adolescent Health. [Article in press], www.jahonline.org/article/S1054-139X%2813%2900415-1/abstract.

(17)

In Massachusetts, youth use of cigars and smokeless tobacco (12.3%) was higher than the rate of cigarette use (10.7%) in 2013 and has remained elevated since 2009;[22] and

[22]

Commonwealth of Massachusetts, Data Brief, Youth Tobacco Use in Massachusetts: Survey Results from 1993 to 2013.

(18)

Research shows that increased cigar prices significantly decreased the probability of male adolescent cigar use and that a 10% increase in cigar prices would reduce use by 3.4%;[23] and

[23]

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.

(19)

Data collected shows that 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 12-17 year olds who smoked cigars reported smoking cigar brands that were flavored;[24] and

[24]

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.

(20)

The 2015 Massachusetts Youth Research shows that 5.8% of Massachusetts youth currently use e-cigarettes and 15.9% have tried them;[25] and

[25]

(21)

The Surgeon General found that exposure to tobacco marketing in stores and price discounting increase youth smoking;[26] and

[26]

U.S. Department of Health and Human Services. 2012. Preventing Tobacco Use Among Youth and Young Adults: A Surgeon General. Atlanta: U.S. National Center for Chronic Disease Prevention and Health Promotion, Office on Health, p. 539, www.surgeongeneral.gov/library/reports/preventing-youth-tobacco-use/full-report.pdf.

(22)

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 undermines efforts to educate patients on the safe and effective use of medication, including cessation medication; and

(23)

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

(24)

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."[27]

[27]

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

Now therefore, this Board of Health adopts the following regulations under its authority specified in § 395-2 herein, as a preventative public health measure intended to regulate the sale of tobacco products in the Town of North Attleborough.

§ 395-2 Statutory authority.

This regulation is promulgated pursuant to the authority granted to the North Attleborough Board of Health by MGL c. 111, § 31, that it "may make reasonable health regulations" to protect the public health of this community.

§ 395-3 Definitions.

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

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/or smoke paraphernalia/accessories, 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 that maintains a valid permit for the retail sale of tobacco products as required to be issued by the Board of Health.

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 OF HEALTH or BOARD

The North Attleborough Board of Health and its authorized agents.

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/nicotine product or component part thereof, including, but not limited to, tastes or aromas relating to any menthol, mint, wintergreen, fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb or spice; provided, however, that no tobacco/nicotine 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, not otherwise defined as a cigarette under MGL c. 64C, § 1, Paragraph 1.

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/nicotine product during the processing, manufacturing or packaging of the tobacco/nicotine 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.

DEPARTMENT or MDPH

The Massachusetts Department of Public Health and its authorized agents.

DISTINGUISHABLE

Perceivable by either the sense of smell or taste.

E-CIGARETTE/ELECTRONIC NICOTINE DELIVERY SYSTEM

Any electronic device composed of a mouthpiece, heating element, battery and/or electronic circuits that provides a vapor of liquid nicotine to the user, or relies on vaporization of any liquid or solid nicotine. This term shall include such devices whether they are manufactured as e-cigarettes, e-cigars, e-pipes, or under any other product name. This includes devices whether for one-time use or reusable and shall also include any noncombustible liquid or gel that is manufactured into a finished product for use in such electronic device.

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 FLAVOR ENHANCER/FLAVORED ELECTRONIC NICOTINE DELIVERY SYSTEM

Any product designed, manufactured, produced, marketed or sold to produce a characterizing flavor when added to any electronic nicotine delivery system. This also means any electronic nicotine delivery system, or component part thereof, that contains a constituent that has or produces a characterizing flavor.

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, drugstores, doctor offices, optician/optometrist offices and dentist offices.

LIQUID NICOTINE CONTAINER

A bottle or other vessel which contains nicotine in liquid or gel form, whether or not combined with another substance or substances, for use in a tobacco product, as defined herein. The term does not include a container containing nicotine in a cartridge that is sold, marketed, or intended for use in a tobacco product, as defined herein, if the cartridge is prefilled and sealed by the manufacturer and not intended to be opened by the consumer or retailer.

LIQUID NICOTINE or NICOTINE SOLUTION

Any product composed, either in whole or in part, of nicotine and manufactured for use with e-cigarettes or other electronic devices.

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.

MARIJUANA ACCESSORIES

Equipment, products, devices, or materials of any kind that are intended or designed for use in ingesting, inhaling, or otherwise introducing marijuana into the human body.

MARIJUANA RETAILER

Marijuana retailer as defined in 935 CMR 500.002.

MINIMUM LEGAL SALES AGE (MLSA)

The age an individual must be before that individual can be sold a tobacco product in the Town of North Attleborough. The minimum legal sales age shall be 21 years old.

NICOTINE DELIVERY PRODUCT

Any article or product made wholly or in part of a tobacco substitute or otherwise containing nicotine that is expected or intended for human consumption, but not including a tobacco substitute prescribed by a licensed physician or a product that has been approved by the U.S. Food and Drug Administration for sale as a tobacco use cessation or harm reduction product or for other medical purposes and which is being marketed and sold solely for that approved purpose, including, but not limited to, e-cigarettes.

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/nicotine products who applies for and receives a tobacco/nicotine product sales permit or any person who is required to apply for a tobacco/nicotine product sales permit pursuant to these regulations, or his or her business agent.

PERSON

Any individual, firm, partnership, association, corporation, company or organization of any kind, including, but not limited to, an owner, operator, manager, proprietor or person in charge of any establishment, business or retail store.

REGISTERED MARIJUANA DISPENSARY

A medical marijuana treatment center, also known as a "registered marijuana dispensary" as defined in 935 CMR 500.002.

SCHOOLS

Public or private elementary or secondary schools.

SELF-SERVICE DISPLAY

Any display from which customers may select a tobacco/nicotine product, as defined herein, without assistance from an employee or store personnel.

SMOKE ACCESSORIES

Equipment, products, devices, or materials of any kind that are intended or designed for use in ingesting, inhaling, or otherwise introducing a tobacco product, marijuana, tetrahydrocannabinol (THC), or cannabidiol (CBD) into the human body, including, but not limited to, marijuana accessories, bongs, pipes, glass pipes, vaporizers, hookah apparatus, and dab rigs.

SMOKE CONSTITUENT

Any chemical or chemical compound in mainstream or side stream 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 components of the tobacco product.

SMOKING BAR

An establishment that primarily is engaged in either the retail sale of tobacco products for consumption by customers on the premises or providing a space for consumers to bring their own product to consume, and is prohibited by the Town of North Attleborough's Workplace and Public Smoking Regulation effective December 11, 2018. "Smoking bar" shall include, but not be limited to, those establishments that are commonly known as "cigar bars" and "hookah bars."

TOBACCO or TOBACCO PRODUCT

Any product containing, made, or derived from tobacco or nicotine that is intended for human consumption, whether smoked, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including, but not limited to: cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco and snuff; or electronic cigarettes, electronic cigars, electronic pipes, electronic hookahs, liquid nicotine, "e-liquids," or other similar products, regardless of nicotine content, that rely on vaporization, heating, or aerosolization. "Tobacco product" includes any component or part of a tobacco product. "Tobacco product" does not include any product that has been approved by the United States Food and Drug Administration either as a tobacco use cessation product or for other medical purposes and which is being marketed and sold or prescribed solely for the approved purpose.

TOBACCO PRODUCT SALES PERMIT or PERMIT

The license granted by the Board to sell or distribute tobacco products.

TOWN

The Town of North Attleborough and its authorized agents.

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.

§ 395-4 Sales to persons under minimum legal sales age.

No person shall sell tobacco products or permit tobacco products, as defined herein, to be sold to a person under the minimum legal sales age of 21 years old in the Town of North Attleborough; or not being the individual's parent or legal guardian, give tobacco products, as defined herein, to a person under the minimum legal sales age of 21 years old.

Required signage.

In conformance with and in addition to MGL c. 270, § 7, a copy of MGL c. 270, §§ 6 and 6A, shall be posted conspicuously by the owner or other person in charge thereof in the shop or other place used to sell tobacco products at retail. The notice shall be provided by the Department and made available from this Board. The notice shall be at least 48 square inches and shall be posted conspicuously by the permit holder in the retail establishment or other place in such a manner so that it may be readily seen by a person standing at or approaching the cash register. The notice shall directly face the purchaser and shall not be obstructed from view or placed at a height of less than four feet or greater than nine feet from the floor. The owner or other person in charge of a shop or other place used to sell tobacco products at retail shall conspicuously post any additional signs required by the Department. The owner or other person in charge of a shop or other place used to sell hand-rolled cigars must display a warning about cigar consumption on a sign at least 50 square inches pursuant to 940 CMR 22.06(2)(e).

The owner or other person in charge of a shop, store or other place used to sell tobacco/nicotine products, as defined herein, at retail shall conspicuously post signage provided by the Board that discloses current referral information about smoking cessation.

The owner or other person in charge of a shop, store or other place used to sell tobacco/nicotine products, as defined herein, at retail shall conspicuously post one or more signs stating that "The sale of tobacco/nicotine products, including e-cigarettes, to someone under the minimum legal sales age of 21 years is prohibited." and "The use of e-cigarettes at all locations and establishments covered by the Smokefree Workplace Law, MGL c.270, § 22, is prohibited." Such notices shall be no smaller than 8.5 inches by 11 inches and shall be posted conspicuously in the retail establishment or other place in such a manner so that they may be readily seen by a person standing at or approaching the cash register. The notice shall directly face the purchaser and shall not be obstructed from view or placed at a height of less than four feet or greater than nine feet from the floor.

Signage shall include health warnings associated with electronic nicotine delivery systems. The owner, retailer, or other person in charge of a retail establishment shall conspicuously post any additional signs required by MDPH in a form and manner as required by MDPH.

Identification. Each person selling or distributing tobacco products, as defined herein, shall verify the age of the purchaser by means of a valid government-issued photographic identification containing the bearer's date of birth that the purchaser is 21 years old or older. Verification is required for any person under the age of 27 years old.

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.

§ 395-5 Permit required.

No person shall sell or otherwise distribute tobacco/nicotine products, as defined herein, within North Attleborough without first obtaining a tobacco/nicotine product sales permit issued annually by this Board. Only owners of establishments with a permanent, nonmobile location in North Attleborough are eligible to apply for such a permit to sell tobacco products, as defined herein, at the specified location in North Attleborough.

As part of the permit application process, the applicant must obtain and review this regulation. Upon submission of said application to the Board, each applicant will be required to sign a statement declaring that the applicant has read this regulation and will be 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 regulation.

An applicant who wishes to sell tobacco/nicotine products in North Attleborough is required to submit a fully completed application, including proof of a current tobacco retailer license issued by the Massachusetts Department of Revenue as required by state law, attach the appropriate fee, and make an initial appearance before the Board, before a permit can be issued.

The fee for a permit shall be determined annually by the Board. All such permits shall expire annually on January 31 and must be renewed annually.

A separate permit is required for each retail establishment selling tobacco products, as defined herein.

Each permit shall be displayed at the retail establishment in a conspicuous place.

A permit is nontransferable and exclusively applicable to a single, specific address. The new owner of an establishment that wishes to sell tobacco products, as defined herein, must apply for and be granted a new permit to sell tobacco products, as defined herein. No new permit applicable to a single, specific address will be issued unless and until all outstanding penalties incurred by the previous permit holder at the same address have been satisfied in full.

Issuance of a permit shall be conditioned on an applicant's consent to unannounced, periodic inspections of that person's retail establishment to ensure compliance with this regulation.

A permit will not be renewed if the permit holder has failed to pay all fines issued and the time period to appeal the fines has expired and/or the permit holder has not satisfied any outstanding permit suspensions.

A permit will not be renewed if the permit holder has sold a tobacco product to a person under the MLSA (§ 395-3A) three times within the previous permit year and the time period to appeal has expired. The violator may request a hearing in accordance with § 395-19E.

Retail establishments, other than adult-only, shall not place any tobacco or nicotine product on the counter but shall place all tobacco products for sale behind the counter. No person shall sell an electronic delivery system with nicotine content greater than 35 milligrams per milliliter outside of an adult-only retail store. Retail establishments may sell or provide unflavored electronic delivery systems with nicotine content less than or equal to 35 milligrams per milliliter. The owner, retailer, or person in charge of the retail establishment must maintain record of the nicotine content submitted by the manufacturer for each electronic nicotine delivery system sold or offered for sale within the retail establishment and provide such records upon request of any authorized enforcement agent, including the Board of Health or their agents and MDPH or its agent. This documentation must be available prior to the sale of any product.

Maximum number of permits:

At any given time, the Board shall assure that no more than 30 permits are issued in North Attleborough. 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 has 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.

A 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.

At any given time, there will be no more than two tobacco/nicotine products sales permits issued to adult-only tobacco stores, as defined herein, in North Attleborough permitted within the total number of 30 permits issued.

Applicants who purchase an existing business that holds a current 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; provided however, that the buyer not sell or otherwise distribute tobacco products, as defined herein, within North Attleborough without first obtaining a Tobacco Sales Permit pursuant to § 395-5A above.

Sale of a tobacco/nicotine product by any retail establishment to a person under the minimum sales age shall result in the retail establishment being prohibited from selling tobacco/nicotine products for up to 30 consecutive business days.

§ 395-6 Cigar sales regulated.

No person shall sell or distribute or cause to be sold or distributed a single cigar having a retail price less than $2.50.

No person shall sell or distribute or cause to be sold or distributed any original factory-wrapped package of two or more cigars, unless such package is priced for retail sale at $5 or more.

This section shall not apply to:

The sale or distribution of any single cigar having a retail price of $2.50 or more.

§ 395-7 Sale of flavored tobacco products.

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 North Attleborough.

From time to time, the Board may adjust the amounts specified in this section by amendment of this regulation in order to reflect changes in the applicable consumer price index.

No person shall sell or distribute, or cause to be sold or distributed, any flavored electronic nicotine delivery products or flavored vaping products effective December 11, 2019. Retail tobacco and adult-only retail stores may sell menthol-flavored combustible tobacco products until May 31, 2020. Effective June 1, 2020, no flavored tobacco or nicotine product will be sold in North Attleborough.

§ 395-8 Sale of smoke accessories.

No person shall sell or distribute, or cause to be sold or distributed, any smoke accessories, as defined herein, with the exception of rolling papers, except in adult-only retail tobacco stores, marijuana retailers, or registered marijuana dispensaries, as defined herein.

§ 395-9 Sale of blunt wraps.

The sale or distribution of blunt wraps in North Attleborough is prohibited.

§ 395-10 Free distribution; coupon redemption.

No person shall:

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

Accept or redeem, or 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 products, as defined herein, for less than the listed or nondiscounted price, or without any charge whatsoever; or

§ 395-14 Nonresidential roll-your-own machines.

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 any charge or for less than the listed or nondiscounted price in exchange for the purchase of any other tobacco product.

Subsection A(2) and (3) above 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.

§ 395-11 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.

A retailer of liquid nicotine containers must comply with the provisions of 310 CMR 30.000 and must submit, with its application for a permit, a written plan acceptable to the Board for a take-back protocol for the liquid nicotine containers, devices and component parts thereof, including the proper disposal of any breakage, spillage, return or expiration of such products.

All retailers 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 set forth in 15 U.S.C. §§ 1471 through 1476 and 16 CFR § 1700 et seq."

§ 395-12 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.

§ 395-13 Vending machines.

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

All nonresidential roll-your-own machines are prohibited.

§ 395-15 Sale by health care institutions.

No health care institution located in this Town 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.

§ 395-16 Sale by educational institutions.

No educational institution located in this Town 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.

§ 395-17 Incorporation of Attorney General Regulation 940 CMR 21.00.

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). The sale or distribution of tobacco and/or nicotine products, as defined herein, must also comply with those provisions found at 105 CMR 665.00 (Minimum Standards for Retail Sale of Tobacco and Electronic Nicotine Delivery Systems).

§ 395-18 Inspections.

The Board and its agents, including its employees, assigns and any law enforcement officers acting in an official capacity, may enter upon privately owned property within North Attleborough, with reasonable notice and at reasonable hours, for the purpose of ensuring compliance with this regulation.

The Board and its agents, including its employees, assigns and any law enforcement officers acting in an official capacity, shall conduct, without limitation, periodic, unannounced inspections of the establishments permitted to sell tobacco or tobacco products within North Attleborough.

The Board and its agents, including its employees, assigns and any law enforcement officers acting in an official capacity, shall have access at all reasonable times to any establishment permitted to sell tobacco or tobacco products within North Attleborough, for the purpose of inspecting said establishment to ensure compliance with this regulation.

§ 395-19 Violations and penalties.

It shall be the responsibility of the permit holder, or his/her operator or business agent, to ensure compliance with this regulation pertaining to the sale, distribution and/or sampling of tobacco and nicotine delivery products. In addition to the suspension, revocation and penalty provisions of the Permit Policy of the Board effective July 1, 2008, and Article XXI, Section 3, of the North Attleborough Bylaws,[1] violators of this regulation may also receive the following penalties:

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

In the case of a second violation within 24 months of the date of the current violation, a fine of $200, and the permit shall be suspended for a minimum of seven consecutive business days.

In the case of three or more violations within a twenty-four-month period, a fine of $300, and the permit shall be suspended for a minimum of 14 consecutive business days.

In the case of four violations or repeated, egregious violations of this regulation within a twenty-four-month period, the Board shall hold a hearing in accordance with § 395-19E herein and may permanently revoke a permit.

[1]

Editor's Note: See Ch. 376, Permits, Art. I, Issuance, Suspension and Revocation, and Ch. 1, General Provisions, § 1-3, Noncriminal violations.

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

Unless otherwise specified or provided for in 105 CMR 665.000, violations of 105 CMR 665.000, portions of which are included within these regulations, but not in entirety, shall be assessed as follows per MDPH regulation. It shall be the responsibility of any person to ensure compliance with 105 CMR 665.00. If an inspection reveals a retail establishment and/or its business agent does not comply with the provisions of 105 CMR 665.000, the retail establishment shall be ordered to comply, and the following fines and actions shall apply against any person who violates 105 CMR 665.00:

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

In the case of a second violation within a period of 36 months from the first violation, a fine of $2,000 shall be imposed, and a prohibition on the sale of tobacco and/or nicotine products may be imposed for at least one day and up to seven consecutive business days.

In the case of a third violation within a period of 36 months from the first violation or additional violations during that time period, a fine of $5,000 shall be imposed, and a prohibition on the sale of tobacco and/or nicotine products may be imposed for at least seven consecutive business days and up to 30 consecutive business days.

In addition to the monetary fines set forth above, any permit holder who engages in the sale or distribution of tobacco/nicotine products while his or her permit is suspended shall be subject to the suspension of all Board-issued licenses or permits of any kind for 30 consecutive business days.

The Board shall provide notice of the intent to suspend or revoke a permit, which notice shall contain the reasons therefor and establish a time and date for a hearing, which date shall be no earlier than seven days after the date of said notice. The permit holder or its business agent shall have an opportunity to be heard at such hearing and shall be notified of the Board's decision and the reasons therefor in writing. After a hearing, the Board may suspend or revoke the permit if the Board finds that a violation of this regulation occurred. For purposes of such suspensions or revocations, the Board shall make the determination notwithstanding any separate criminal or noncriminal proceedings brought in court hereunder or under the Massachusetts General Laws for the same offense. All tobacco/nicotine products, as defined herein, shall be removed from the retail establishment upon suspension or revocation of a permit. Failure to remove all tobacco products, as defined herein, shall constitute a separate violation of this regulation.

Order to cease and desist.

An order to cease and desist may be issued by MDPH or the Board of Health to a person or a business agent of a retail establishment upon the regulatory authority's reasonable belief that:

(a)

A person is conducting sales of tobacco/nicotine products in violation of the law, regulation, and/or standards applicable to it; or

(b)

A person refuses access to the premises and/or records to authorized enforcement agents; or

(c)

A person or retail establishment is operating in a manner that may pose an imminent danger to the public health; or

(d)

A retail establishment has failed to comply with a correction order within the time specified; or

(e)

A retail establishment is operating in a manner that is unsafe or otherwise below the accepted standards for the type of operation and summary closure is authorized by statute on these grounds.

Service of orders to cease and desist shall be on the person or retail establishment or business agent of the retail establishment by: personal delivery by an agent of the regulatory agency; or posting in a conspicuous place at the retail establishment; or simultaneously mailing by first-class and certified mail return receipt requested; or by any officer of the commonwealth or Board of Health authorized to make service.