HomeMy Public PortalAboutTobacco Regulation (July 2021)1
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BREWSTER BOARD OF HEALTH REGULATION RESTRICTING
THE SALE OF TOBACCO AND NICOTINE DELIVERY PRODUCTS
THIS REGULATION INCORPORATES THE FOLLOWING:
1. The minimum standards required pursuant to the United States Food and Drug Administration on the
sale and distribution of cigarettes; and
2. The minimum standards required pursuant to Massachusetts state law and regulation. This includes but
is not limited to M.G.L. Chapter 270 regarding sales to those under the minimum legal sales age of 21,
tobacco and vaping product sales including flavored products, required signage, matching definitions
and other relevant state statutes and regulations, as of September 2020.
A. Statement of Purpose:
Whereas there exists conclusive evidence that tobacco smoking causes cancer, respiratory and cardiac diseases,
negative birth outcomes, irritations to the eyes, nose and throat1;
Whereas the U.S. Department of Health and Human Services has concluded that nicotine is as addictive as
cocaine or heroin2 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 adolescence4;
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 smokers5;
1 Center for Disease Control and Prevention, (CDC) (2012), Health Effects of Cigarette Smoking Fact Sheet. Retrieved from:
http://www.cdc.gov/tobacco/data_statistice/fact_sheets/health_effects/effects_cig_smoking/index . htm.
2 CDC (2010), How Tobacco Smoke Causes Disease: The Biology and Behavioral Basis for Smoking-Attributable Disease. Retrieved
from: http://www.cdc.gov/tobacco/data_statistics/sgr/2010/.
3 U.S. Department of Health and Human Services. 2014. The Health Consequences of Smoking – 50 Years of Progress: A Report of
the Surgeon General. Atlanta: U.S. National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and
Health, p. 122. Retrieved from: http://www.surgeongeneral.gov/library/ reports/ 50-years-of-progress/full-report.pdf.
4 Id. at Executive Summary p. 13. Retrieved from: http://www.surgeongeneral.gov/library/reports/50 -years-of-progress/exec-
summary.pdf
5 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.
Town of Brewster
2198 MAIN STREET Health Department
BREWSTER, MASSACHUSETTS 02631-1898
Amy L. von Hone, R.S., C.H.O. Director
PHONE: 508.896.3701 EXT. 1120
FAX: 508.896.4538 Sherrie McCullough, R.S.
brhealth@brewster-ma.gov Assistant Director
WWW.BREWSTER-MA.GOV Tammi Mason
Senior Department Assistant
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Whereas more than 80 percent of all adult smokers begin smoking before the age of 18, more than 90 percent
do so before leaving their teens, and more than 3.5 million middle and high school students smoke6;
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 youth7;
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%8;
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 12 – 17 year old’s who smoked cigars
reported smoking cigar brands that were flavored9;
Whereas the Surgeon General found that exposure to tobacco marketing in stores and price discounting increase
youth smoking10;
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 addiction11;
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
sale12;
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
cessation13;
Whereas menthol makes it easier for youth to initiate tobacco use14;
6 SAMHSA, Calculated based on data in 2011 National Survey on Drug Use and Health and U. S. Department of Health and Human
services (HHA).
7 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 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.
9 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.
10 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.
11 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. 53 9,
www.surgeongeneral.gov/library/reports/preventing-youth-tobacco-use/full-report.pdf.
12 See fn. 3 at p. 85.
13 www.fda.gov/downloads/ucm361598.pdf, Https://tobacco,ucsf.edu/tpsac-gave-fda-what-it-needs-to-ban-menthol
14 www.tobaccofreekids.org/assets/factsheet/0390.pdf
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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 201815;
Whereas the Massachusetts Department of Environmental Protection has classified liquid nicotine in any
amount as an “acutely hazardous waste”16;
Whereas according to the CDC’s youth risk behavior surveillance system, the percentage of high school
students in Massachusetts who reported the use of cigars within the past 30 days was 10.8% in 201317
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 cigarettes18;
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”19.
Whereas Communities that are densely populated with tobacco retailers make it easier for youths to obtain
tobacco products. Also, because retail outlets are a key marketing channel for tobacco products, a high density
of tobacco retailers in a neighborhood creates a concentration of tobacco marketing, meaning children, youth
and adults living in those neighborhoods will be exposed to multiple environmental cues designed to encourage
tobacco use.
Whereas Studies have shown that youth who live and go to schools in neighborhoods with the highest density of
tobacco outlets (or with the highest density of retail tobacco advertising) have higher smoking rates compared to
youth who live, or attend school, in neighborhoods with fewer or no tobacco outlets.
Whereas Studies have also shown that limitations on the number of tobacco retailers, combined with strong
licensing requirements, has a positive effect on reducing youth smoking rates.
Now, therefore it is the intention of the Brewster Board of Health to regulate the sale of tobacco products.
B. Authority:
This regulation is promulgated pursuant to the authority granted to the Brewster Board of Health by
Massachusetts General Laws Chapter 111, Section 31 which states "Boards of health may make reasonable
health regulations".
C. Definitions:
For the purpose of this regulation, the following words shall have the following meanings:
Adult-Only Retail Tobacco Store (also known as “Retail Tobacco Store” in MGL Ch. 270): An establishment
that does not share space with another business, that has a separate entrance, that does not sell food or alcohol,
that does not have a restaurant license or lottery license, whose only purpose is to sell or offer for retail sale
15 MA YRBS 2017
16 310 CMR 30.136
17 See fn. 7.
18 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.
19 Druzik et al v. Board of Health of Haverhill, 324 Mass.129 (1949).
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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
Brewster Board of Health and applicable state licenses. Entrance to the establishment must be secure so that
access to the establishment is restricted to employees and to those 21 years or older. The establishment shall
not allow anyone under the age of 21 to work at the establishment.
Blunt Wrap: Any flavored 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.
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.
Child-Resistant Package: Packaging intended to reduce the risk of a child ingesting nicotine and that meets the
minimum standards of 16 C.F.R. 1700 et seq., pursuant to 15 U.S.C. 1471 through 1476.
Cigar: Any roll of tobacco that is wrapped in leaf tobacco or in any substance containing tobacco, with or
without a tip or mouthpiece, that is in a readily usable state immediately when removed from its packaging
without any modification, preparation or assembly required as in a kit or roll-your-own package, 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.
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.
Employee: Any individual who performs services for an employer.
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Employer: Any individual, partnership, association, corporation, trust or other organized group of individuals
that uses the services of one (1) or more employees.
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.
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 M.G.L. c. 112 or a retail establishment that provides
pharmaceutical goods and services and is subject to the provisions of 247 CMR 6.00. Health care institutions
include, but are not limited to, hospitals, clinics, health centers, pharmacies, drug stores, doctor offices,
optician/optometrist offices and dentist offices.
Liquid Nicotine Container: A package from which nicotine or other substance in a solution or other form is
accessible through normal and foreseeable use by a consumer and that is used to hold a soluble nicotine or other
substance in any concentration; provided however, that "liquid nicotine container" shall not include a sealed,
prefilled and disposable container of nicotine or other substance in a solution or other form in which the
container is inserted directly into an electronic cigarette, electronic nicotine delivery system or other similar
product if the nicotine or other substance in the container is inaccessible through customary or reasonably
foreseeable handling or use, including reasonably foreseeable ingestion or other contact by children.
Listed or Non-Discounted 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.
Non-Residential 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 Non-
Residential RYO machines.
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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 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.
Self-Service Display: Any display from which customers may select a tobacco product, as defined herein,
without assistance from an employee or store personnel.
Schools: Public or private elementary or secondary schools.
Smoke Constituent: Any chemical or chemical compound in mainstream or sidestream tobacco smoke that
either transfers from any component of the tobacco product to the smoke or that is formed by the combustion or
heating of tobacco, additives or other component of the tobacco product.
Smoking Bar: An establishment that: (i) exclusively occupies an enclosed indoor space and is primarily
engaged in the retail sale of tobacco products for consumption by customers on the premises; (ii) derives
revenue from the sale of food, alcohol or other beverages that is incidental to the sale of a tobacco product and
prohibits entry to a person under 21 years of age; (iii) prohibits a food or beverage not sold directly by the
establishment from being consumed on the premises; (iv) maintains a valid permit for the retail sale of a
tobacco product as required to be issued by the Town of Brewster; 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 Flavor Enhancer: Any product designed, manufactured, produced, marketed or sold to
produce a characterizing flavor when added to any tobacco product.
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.
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.
D. Tobacco Sales to Persons Under Twenty-One (21) Years Old:
1. No person shall sell, offer for sale or provide a tobacco product to a person under twenty-one (21) years old.
2. Required Signage:
a. 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
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Massachusetts Department of Public Health. Such signage shall include: (i) a copy of M.G.L. c. 270, §§
6 and 6A; (ii) referral information for smoking cessation resources; (iii) a statement that sale of tobacco
products, including e-cigarettes, to someone younger than 21 years of age is prohibited; (iv) health
warnings associated with using electronic nicotine delivery systems; and (v) except in the case of
smoking bars, notice to consumers that the sale of flavored electronic nicotine systems are prohibited at
all times. Such signage shall be posted conspicuously in the retail establishment or other place in such a
manner so that it may be readily seen by a person standing at or approaching the cash register. The
notice shall directly face the purchaser and shall not be obstructed from view or placed at a height of less
than four feet or greater than nine feet from the floor.
b. 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.”
c. All smoking bars and those adult-only retail tobacco stores that allow for onsite consumption of tobacco
products shall post signage, in the form developed and made available by the Massachusetts Department
of Public Health, on the exterior of the door providing entrance to the tobacco retail store or smoking bar
and such sign shall not be obstructed from view or placed at a height of less than four feet or greater
than nine from the bottom of the door. Such signage shall warn persons entering that smoking and
vaping may be present on the premises, and provide information concerning the health risks associated
with second hand smoke and the use of tobacco products, including electronic nicotine delivery systems.
3. Identification: Each person selling, offering for sale 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.
4. 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.
E. Tobacco Product Sales Permit:
1. No person shall sell, offer for sale or otherwise distribute tobacco products, as defined herein, within the
Town of Brewster without first obtaining a Tobacco Product Sales Permit issued annually by the Brewster
Board of Health. Only owners of establishments with a permanent, non-mobile location in Brewster are
eligible to apply for a permit and sell tobacco products, as defined herein, at the specified location in
Brewster.
2. As part of the Tobacco Product Sales Permit application process, the applicant will be provided with the
Brewster 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.
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3. 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. Applicant may be asked to provide evidence that a legitimate business transfer
or business purchase has taken place.
4. A separate permit, displayed conspicuously, is required for each retail establishment selling tobacco
products, as defined herein. The fee shall be determined by the Brewster Board of Health annually.
5. 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.
6. 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.
7. 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 or appeal is pending. The violator may request a hearing in accordance with subsection 6 of the
Violations section.
8. Maximum Number of Tobacco Product Sales Permits.
a. At any given time, there shall be no more than 11 Tobacco Product Sales Permits issued in Brewster. 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 thirty (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.
b. At any given time, of the allowed Permit number in subsection (a) above, there shall be no more than 1
Tobacco Product Sales Permits issued to Adult-Only Retail Tobacco Stores, per the definition, in
Brewster. 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 thirty (30) days of expiration will be
treated as a first-time permit applicant.
c. Any Tobacco Product Sales Permits that are surrendered, not renewed or revoked, will be returned to the
Board of Health and will be made available to new applicants on a first-come, first serve basis, provided
that any permits surrendered, not renewed or revoked at a time when there are more permits than
authorized by this section shall be permanently retired.
d. Applicants who purchase or acquire an existing business that holds a valid Tobacco Product Sales Permit
at the time of the sale or acquisition of said business must apply within sixty (60) days of such sale or
acquisition for the permit held by the Current Permit Holder if the Applicant intends to sell tobacco
products, as defined herein. Such applicant may choose to apply for a Tobacco Product Sales Permit for
an Adult-Only Retail Tobacco Store if the Current Permit Holder possessed the same or if a Tobacco
Product Sales Permit for an Adult-Only Retail Tobacco Store is available per subsection (b).
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9. Setbacks
a. A Tobacco Product Sales Permit shall not be issued to any applicant for a new retail location within five
hundred (500) feet of a public or private elementary or secondary school.
b. No new adult-only retail tobacco stores shall be located within twenty-five (25) feet of a retailer with a
tobacco product sales permit.
c. For purposes of this section, distances shall be measured by a straight line from the nearest point of the
property line of the applicant’s proposed location to the nearest point of the property line of the other site.
F. Prohibition of Smoking Bars:
Smoking Bars are prohibited in the Town of Brewster.
G. Cigar Sales Regulated:
1. 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 two dollars and fifty cents ($2.50) or more.
2. 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 five dollars ($5.00) or more.
3. 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 Brewster.
4. The Brewster 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.
H. Sale of Flavored Tobacco Products Prohibited:
No person shall possess, hold, keep, sell, offer for sale 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 per 105CMR 665.010 (E). Manufacturers shall provide documentation certifying those products,
sold by the retailer, that do not meet the definition of a flavored tobacco product flavor enhancer.
I. 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 Per 105
CMR 665.010(C), manufacturers shall provide documentation indicating the nicotine content of each of their
products sold by the retailer, expressed as milligrams per milliliter.
J. Prohibition of the Sale of Flavored Blunt Wraps:
No person or entity shall sell or distribute flavored blunt wraps in Brewster.
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K. Free Distribution and Coupon Redemption: No person shall:
1. Distribute or cause to be distributed, any free samples of tobacco products, as defined herein;
2. 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 non-discounted price; or
3. 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 non-discounted price in exchange for the purchase of any other
tobacco product.
L. Out-of-Package Sales:
1. 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 twenty (20) cigarettes, including single cigarettes.
2. Permit holders who sell Liquid Nicotine Containers must comply with the provisions of 310 CMR 30.000,
and must provide the Brewster Board of Health with a written plan for disposal of said product, including
disposal plans for any breakage, spillage or expiration of the product.
3. 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.”
4. No permit holder shall refill a cartridge that is prefilled and sealed by the manufacturer and not intended to
be opened by the consumer or retailer.
M. 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.
N. Vending Machines:
All vending machines containing tobacco products, as defined herein, are prohibited.
O. Non-Residential Roll-Your-Own Machines:
All Non-Residential Roll-Your-Own machines are prohibited.
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P. Prohibition of the Sale of Tobacco Products by Health Care Institutions:
No health care institution located in Brewster 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.
Q. Prohibition of the Sale of Tobacco Products by Educational Institutions:
No educational institution located in Brewster 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.
R. Incorporation of Other Laws and State Regulations:
The possession, sale and distribution of tobacco products as defined and regulated herein, shall comply with all
applicable federal, state and local laws, including but not limited to the following:
1. The sale or distribution of tobacco products, as defined herein, must comply with those provisions found at
M.G.L. Ch. 270, §§6, 6A, 7, 28, 29 and M.G.L. Ch. 112, §61A.
2. The sale or distribution of tobacco products, as defined 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”), and 105 CMR 665.00 (“Minimum Standards for Retail Sale of Tobacco and Electronic
Nicotine Delivery Systems”).
In the event of a conflict between this regulation and any other applicable law, the more stringent requirement
will apply.
S. Enforcement :
1. 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.
2. Whoever violates any provision of this Regulation may be penalized by indictment or on complaint brought
in a court of competent jurisdiction. Except as may be otherwise provided by law and as the court may see
fit to impose, for violations of the sections of this regulation that incorporate state laws and state regulations,
the following penalties apply:
a. In the case of a first violation, a fine of one thousand dollars ($1000.00).
b. In the case of a second violation within thirty-six (36) months of the date of the current violation, a fine
of two thousand dollars ($2000.00) shall be issued and the Tobacco Product Sales Permit shall be
suspended for seven (7) consecutive business days.
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c. In the case of three or more violations within a thirty-six (36)-month period, a fine of five thousand
dollars ($5000.00) shall be issued and the Tobacco Product Sales Permit shall be suspended for thirty
(30) consecutive business days.
3. For violations of all other sections specific to the Town of Brewster, the violator shall receive:
a. In the case of a first violation, a fine of one hundred dollars ($100.00).
b. In the case of a second violation within thirty-six (36) months of the date of the current violation, a fine
of two hundred dollars ($200.00) and the Tobacco Product Sales Permit shall be suspended for seven (7)
consecutive business days.
c. In the case of three or more violations within a thirty-six (36)-month period, a fine of three hundred
dollars ($300.00) and the Tobacco Product Sales Permit shall be suspended for thirty (30) consecutive
business days.
d. The sections specific to the Town of Brewster include:
1. The maximum number of tobacco sales permits allowed in Brewster (§E.9);
2. No new retailers near schools (§E.9);
3. The prohibition of smoking bars (§F);
4. Minimum pricing on the sale of cigars (§G);
5. The prohibition of the sale of flavored blunt wraps (§J);
6. The prohibition of self-service displays (§M);
7. The prohibition of vending machines (§N);
8. The prohibition of non-residential roll-your-own machines (§O);
9. The prohibition of the sale of tobacco products in health care institutions (§P); and
10. The prohibition of the sale of tobacco products in educational institutions (§Q)
e. Each day or portion thereof shall constitute a separate offense. If more than one, each condition violated
shall constitute a separate offense.
4. The Board of Health may refuse to renew, modify, suspend or revoke any permit issued pursuant to this
Regulation for any violation of this Regulation, or any other applicable General Law, regulation or by-law
relative to the control of tobacco. The Board shall follow the following guidelines when considering
disciplinary action:
• First Offense: Written Warning
• Second Offense: Permit Suspension of up to seven (7) days
• Third Offense: Permit Suspension for up to thirty (30) days
• Fourth or subsequent Offense: Permit revocation
• Failure to Cooperate with Inspection: Permit Suspension for up to thirty (30) days
• Distribution of Tobacco Products During Suspension: Additional Suspension of up to thirty (30) days
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Only offenses which have occurred within the thirty-six (36) months preceding the date of violation shall be
used in calculating the number of offenses for purposes of the penalty guidelines.
5. 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.
6. The Brewster 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 (7) 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 Brewster 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.
T. Non-Criminal Disposition:
Whoever violates any provision of this regulation may be penalized by the non-criminal method of disposition
as provided in Massachusetts General Laws, Chapter 40, Section 21D. If noncriminal disposition is elected,
then the non-criminal fine for each such violation shall be: First Offense: one hundred dollars ($100); Second
Offense: two hundred dollars ($200); Third and Subsequent Offense: three hundred dollars ($300).
U. Separate Violations:
Each day any violation exists shall be deemed to be a separate offense.
V. Enforcement:
Enforcement of this regulation shall be by the Brewster Board of Health or its designated agent(s).
Any resident who desires to register a complaint pursuant to the regulation may do so by contacting the
Brewster Board of Health or its designated agent(s) and the Board shall investigate.
W. Severability:
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.
X. Effective Date:
This regulation shall take effect on ____September 15, 2021.
_____________________________________
_____________________________________ Board
of
_____________________________________ Health
_____________________________________
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_____________________________________