Board of Health

An organizational meeting was held at 5:00 p.m., March 3rd, 2016 in the Ethnic Heritage Room at the Fitchburg Public Library. Present were: Ian Murray, Chairman; John Bogdasarian, M.D., Member; Sandra Knipe, RN BSN Member; Stephen Curry, Director; Joan Hamlett, Tobacco Control Alliance; Eric Jack, Tobacco Control, Chris McKenzie, McKenzie Engineering, Jeffrey Van Amburgh, Anna Burgess; Sentinel & Enterprise. Local upgrade Approval for Title 5; 71 Overlook Avenue: Chris McKenzie from Whitman & Bingham is asking the board for a local upgrade approval for the system being outside of the testing area. When construction is set to take place a deep hole observation will be conducted to assure the area is suitable. The 2nd local upgrade request is a 3 ft. separation from ground water instead of the required 4 ft. that would help avoid requiring a pump for this system. Sandra Knipe asked what kind of system they have, Mr. McKenzie response was a standard stone and pipe trenches 3 ft. wide 12 inches deep. Mr. Curry asked if they had any objection to a confirmatory test hole, Mr. McKenzie stated they do not object. Sandra Knipe stated she didn’t see any reason not to grant the two LUA’s, Mr. Curry suggested to put conditions on it that they do the confirmatory testing when weather permits and Mr. Curry would be there to witness the deep hole observation. Mr. Curry also stated another condition of approval should require the owners, who wish to use the existing septic tank, to allow the Health Department to do a thorough inspection to be sure it’s not leaking and it’s up to current Title 5 standards. Sandra Knipe made a motion to approve two local upgrade approvals; 1) The reduction of the required 4 ft. separation between the bottom of the leach area and the estimated seasonal high ground water to 3 ft. 2) Approve the reduction of the required number of deep test holes performed in the disposal area. There will be two conditions of approval: 1. At the time of the inspection there will be an additional deep hole testing and; 2. Allow the Health Department to inspect the existing septic tank and bring it to today’s Title 5 code. Ian Murray 2nd the motion, all members were in favor. Tobacco Flavor Ban Discussion: Joan Hamlet and Eric Jack from Tobacco Control reviewed the current regulations and would like to address further questions and concerns the board members may have. Ms. Hamlett stated under the Checklist for Policy Decisions number 2, 3, 5, 6, 7 & 8 (see attached document for reference) would need be decided to be included in the draft everything else listed is what Fitchburg already has in the regulations. The only other thing is number 18 & 19 the fining structure of 100/200/300 although larger communities are now moving to 300/300/300 everyone gets a $300 dollar fine for everything and you don’t need to track the Tolling periods. Ms. Hamlett suggests sticking with 100/200/300 if you are going to stick with the flavor ban language. Mr. Curry stated a $100 dollar fine to enforce and to chase in court costs a lot more than $100 dollars. The new regulation language incorporates, M.G.L. Chapter 270, Sections 6 and 7; and has expanded language to regulate nicotine delivery products and electronic cigarettes as tobacco products in the definition of tobacco products. The new regulation also includes an additional retail sign requirement regarding smoking cessation, which is currently being used in Boston. The new draft regulation also has an extensive definition of Tobacco products. If Fitchburg is going to move forward with a “flavor ban”, Ms. Hamlett strongly recommends including this language. Anyone selling tobacco would be required to post a sign regarding smoking cessation that includes a toll free number for help to quit smoking. Mr. Curry asked if there are any requirements for the signs. Ms. Hamlett stated Massachusetts Tobacco Program will print the sign free. Sandra Knipe asked if posting the signs makes a difference and Ms. Hamlett said that it does and people do call the toll free number to quit but there are no definite statistics. Ms. Hamlett stated there is also new language stating no sales within 500 feet of a school (6) in the policy decisions. The BOH members discussed other language existing on the policy decisions checklist regarding the “tolling period”, “fining structure” and the “suspension period”. Mr. Curry asked if the board would like to see a draft of the regulations before it goes to a public hearing. Sandra Knipe replied she would like to see a draft. Ms. Hamlett will get a draft together of the regulations and will present to the board at the April meeting. Lead Inspector Training Funding: Mr. Curry stated four inspectors will need physicals and blood test at the cost of $260.00 each. Mr. Curry is asking the board to use funds from the Kujanpaa Grant Trust Fund to pay for three inspectors and use PHDIG Grant money for the other inspector if a need arises and cannot be funded in the budget. This testing is required in order to receive a full code Lead Inspector license. Mr. Curry is asking for the board’s permission to use the funds if needed. Sandra Knipe made a motion to allow Mr. Curry to use the Kujanpaa Trust Fund money if needed, motion was 2nd by Dr. Bogdasarian, and all members were in favor. FY 17 Budget Discussion: Mr. Curry went over the budget report and stated the Mayor has already approved however changes may be made in next few months. There was not much change in the budget from last year except the difference in money with the change of staff of a sanitary Inspector and the Principal Clerk/Stenographer and the Principal Clerk position. Mr. Curry also reviewed the Rubbish Collection and Sanitary Landfill budgets. Ian Murray made a motion to approve the FY 17 Budget as requested, motion was 2nd by Dr. Bogdasarian, and all were in favor. Approve the Meeting Minutes: Mr. Curry stated he accidentally posted the previous minutes without the amendments, he will re-post the approved minutes with the amendments. Sandra Knipe made a motion to accept the minutes as amended, motion 2nd by Dr. Bogdasarian, all were in favor. Staff Reports: Mr. Curry stated the Food & Milk inspector did not turn in a monthly report so this report is not included in the member packet. The board conducted a review of the Sanitary Inspector reports and the nurse’s report for January. Ian Murray made a motion to accept the staff reports with the exception of the Food & Milk Inspectors report which they do not have. This motion was 2nd by Sandra Knipe, all were in favor A motion to adjourn was made and the meeting adjourned at 7:10 p.m. Respectfully submitted; Karen A. Membrino Principal Clerk Stenographer  FY 15 June 2015 SAMPLE REGULATION RESTRICTING THE SALE OF TOBACCO PRODUCTS This template expands the regulatory scope to both the sale of tobacco and the sale of non-regulated nicotine delivery products, defines tobacco products to include non-regulated nicotine delivery products and includes several innovative policies to deter youth from smoking and to encourage current smokers to quit. THIS MODEL REGULATION INCORPORATES THE FOLLOWING: 1. The minimum standards required pursuant to the United States Food and Drug Administration regulations and the Attorney General’s regulations on the sale of tobacco; 2. M.G.L. Chapter 270, Sections 6 and 7; 3. Expanded language to include non-regulated nicotine delivery products in the definition of tobacco products for the purposes of this regulation; 4. Requirement that cigars be sold in original packs of 2 or more and be priced for retail sale at $5 or more; 5. Ban of tobacco product sales, as defined in this regulation, in educational institutions and in health care institutions; 6. Expanded language to regulate nicotine delivery products and electronic cigarettes as tobacco products; 7. An additional retail sign requirement regarding smoking cessation, currently being used by Boston; 8. Language restricting the sale of flavored tobacco products to smoking bars and retail tobacco stores; INSTRUCTIONS FOR USE: 1. Fill in [city or town] name; 2. Everything in black, Fitchburg already has. Everything in blue is new. 3. Fill in effective date; 4. If sections are removed, re-letter/re-number accordingly. CHECKLIST FOR POLICY DECISIONS (circle decisions): 1. Definition of tobacco products includes nicotine delivery products YES NO This definition is significantly expanded and combines all products into one. 2. Include minimum cigar package size/price (§F) YES 3. No permit renewal if outstanding fines exist (§E.9) YES 4. No permit renewal if three sales to under MLSA (§E.10) YES NO 5. Cap and/or reduce number of permits (§E.11) YES NO 6. No sales within 500 feet of a school (§E.12) YES NO 7. Restrict flavored tobacco products to retailer tobacco stores only (§G) YES NO 8. Minimum legal sales age for tobacco products (§D) 18 9. Ban blunt wraps (§H) YES 10. Ban free distribution of tobacco products & redemption of coupons (§I) YES 11. Ban out of package sales (§J) YES 12. Ban self-service displays (§K) YES 13. Ban vending machines (§L) YES 14. Ban Non-Residential RYO machines (§M) YES 15. Ban tobacco product sales in health care institutions (§N) YES 16. Ban tobacco product sales in educational institutions (§O) YES 17. Fining structure mirrors state law (§P) OR FLAT FINE 100/200/300 300/300/300 18. Tolling periods for violations (§P.1.b and c) 24 months 36 months  19. Suspension Period – Maintain or Double Lengths 3/7/30 days 14/60 days 20. “Shall” vs. “May” language for suspensions SHALL (3 instances found in §§P.1.b, Q.1.c. and Q.4) Regulation of the [city/town] Board of Health Restricting the Sale of Tobacco Products 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 among the 15.7% of students nationwide who currently smoke cigarettes and were less than 18 years old, 14.1% usually obtained them by buying them in a store (i.e. convenience store, supermarket, or discount store) or gas station2; Whereas the U.S. Department of Health and Human Services has concluded that nicotine is as addictive as cocaine or heroin3 and the Surgeon General found that nicotine exposure during adolescence, a critical window for brain development, may have lasting adverse consequences for brain development,4 and that it is addiction to nicotine that keeps youth smoking past adolescence.5 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 smokers6; Whereas more than 80 percent of all adult smokers begin smoking before the age of 18, more 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 (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 (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/. 4 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. 5 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 6 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. than 90 percent do so before leaving their teens, and more than 3.5 million middle and high school students smoke;7 Whereas the Institute of Medicine (IOM) concludes that raising the minimum age of legal access to tobacco products to 21 will reduce tobacco initiation, particularly among adolescents 15 – 17, and will improve health across the lifespan and save lives8. Whereas sales of flavored little cigars increased by 23% between 2008 and 20109 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 youth10; Whereas the federal Family Smoking Prevention and Tobacco Control Act (FSPTCA), enacted in 2009, prohibited candy- and fruit-flavored cigarettes,11 largely because these flavored products were marketed to youth and young adults,12 and younger smokers were more likely to have tried these products than older smokers13, neither federal nor Massachusetts laws restrict sales of flavored non-cigarette tobacco products, such as cigars, cigarillos, smokeless tobacco, hookah tobacco, and electronic devices and the nicotine solutions used in these devices; 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;14 7 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. 8 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. 9 Delnevo, C., Flavored Little Cigars memo, September 21, 2011, from Neilson market scanner data. 10 CDC (2009), Youth Risk Behavior, Surveillance Summaries (MMWR 2010: 59, 12, note 5). Retrieved from: http:www.cdc.gov/mmwr/pdf/ss/ss5905.pdf. 11 21 U.S.C. § 387g. 12 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. 13 U.S. Department of Health and Human Services. 2012. Preventing Tobacco Use Among Youth and Young Adults: A Report of the Surgeon General. Atlanta: U.S. National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, p. 539, www.surgeongeneral.gov/library/reports/preventing-youth- tobacco-use/full-report.pdf. 14 Food and Drug Administration. 2011. Fact Sheet: Flavored Tobacco Products, www.fda.gov/downloads/TobaccoProducts/ProtectingKidsfromTobacco/FlavoredTobacco/UCM183214.pdf; U.S. Department of Health and Human Services. 2012. Preventing Tobacco Use Among Youth and Young Adults: A Report of the Surgeon General. Atlanta: U.S. National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, p. 539, www.surgeongeneral.gov/library/reports/preventing-youth-tobacco-use/full- report.pdf. Whereas the U.S. Surgeon General recognized in his 2014 report that a complementary strategy to assist in eradicating tobacco related death and disease is for local governments to ban categories of products from retail sale;15 Whereas the U.S. Centers for Disease Control and Prevention has reported that current electronic cigarette use among middle and high school students tripled from 2013 to 2014;16 Whereas nicotine solutions, which are 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;17 Whereas the Massachusetts Department of Environmental Protection has classified liquid nicotine in any amount as an “acutely hazardous waste” (310 CMR 30.136); Whereas in a lab analysis conducted by the FDA, electronic cigarette cartridges that were labeled as containing no nicotine actually had low levels of nicotine present in all cartridges tested, except for one18; Whereas according to the CDC’s youth risk behavior surveillance system, the percentage of high school students in Massachusetts who reported the use of cigars within the past 30 days is 10.8% in 2013; 19 Whereas data from the National Youth Tobacco Survey indicate that more than two-fifths of U.S. middle and high school smokers report using flavored little cigars or flavored cigarettes;20 Whereas the [most recent year] Youth Risk Behavioral Survey (YRBS) results show that ___% of [city/town] high school students had smoked cigars, cigarillos, or little cigars on at least one day of the 30 days before the survey, compared with ___ % in [whatever past year is available] 21; [USE IF LOCAL DATA POINTS EXIST OTHERWISE DELETE THIS STATEMENT]. 15 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. 16 Centers for Disease Control & Prevention. 2015. “Tobacco Use Among Middle and High School Students — United States, 2011–2014,” Morbidity and Mortality Weekly Report (MMWR) 64(14): 381–385. 17 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. 18 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. 19 19 CDC (2013) Youth Risk Behavior, Surveillance Summaries (MMWR 2014: 63 (No SS-04)). Retrieved from: www.cdc.gov. 20 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. Whereas in Massachusetts, youth use of cigars and smokeless tobacco (12.3%) is higher than the rate of current cigarette use (10.7%) for 2013 and has remained elevated since 200922; 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%23; Whereas the sale of tobacco products is incompatible with the mission of health care institutions because these products are detrimental to the public health and their presence in health care institutions undermine efforts to educate patients on the safe and effective use of medication, including cessation medication; Whereas educational institutions sell tobacco products to a younger population, who 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; 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”24. Now, therefore it is the intention of the [city/town] Board of Health to regulate the sale of tobacco products. B. Authority: This regulation is promulgated pursuant to the authority granted to the [city/town] 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: 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. 21 [city/town] [most recent year] Youth Risk Behavior Survey and [whatever past year is available] Youth Risk Behavior Survey. 22 Commonwealth of Massachusetts, Data Brief, Youth Tobacco Use in Massachusetts: Survey Results from 1993 to 2013. 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. 24 Druzik et al v. Board of Health of Haverhill, 324 Mass.129 (1949). 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. 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 Massachusetts General Law, Chapter 64C, Section 1, Paragraph 1. Characterizing flavor: A distinguishable taste or aroma, other than the taste or aroma of tobacco, menthol, mint or wintergreen, imparted or detectable either prior to or during consumption of a tobacco product or component part thereof, including, but not limited to, tastes or aromas relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb or spice; provided, however, that no tobacco product shall be determined to have a characterizing flavor solely because of the provision of ingredient information or the use of additives or flavorings that do not contribute to the distinguishable taste or aroma of the product. Component part: Any element of a tobacco product, including, but not limited to, the tobacco, filter and paper, but not including any constituent. Constituent: Any ingredient, substance, chemical or compound, other than tobacco, water or reconstituted tobacco sheet, that is added by the manufacturer to a tobacco product during the processing, manufacturing or packaging of the tobacco product. Such term shall include a smoke constituent. Coupon: Any card, paper, note, form, statement, ticket or other issue distributed for commercial or promotional purposes to be later surrendered by the bearer so as to receive an article, service or accommodation without charge or at a discount price. Distinguishable: Perceivable by either the sense of smell or taste. Educational Institution: Any public or private college, school, professional school, scientific or technical institution, university or other institution furnishing a program of higher education. 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 (1) 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 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 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 open by the consumer or retailer. 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 state price, and before the application of any discounts or coupons. Minimum Legal Sales Age (MLSA): The age an individual must be before that individual can be sold a tobacco product in the municipality. 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. 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. Retail Tobacco Store: An establishment that is not required to possess a retail food permit whose primary purpose is to sell or offer for sale, but not for resale, tobacco products and tobacco paraphernalia, in which the sale of other products is merely incidental, and in which the entry of persons under the minimum legal sales age is prohibited at all times, and maintains a valid permit for the retail sale of tobacco products as required to be issued by the [city/town] Board of Health. 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 primarily is engaged in the retail sale of tobacco products for consumption by customers on the premises and is required by Mass. General Law Ch. 270, §22 to maintain a valid permit to operate a smoking bar issued by the Massachusetts Department of Revenue. “Smoking bar” shall include, but not be limited to, those establishments that are commonly known as “cigar bars” and “hookah bars”. 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, snuff, or electronic cigarettes, electronic cigars, electronic pipes, electronic hookah, or other similar products, regardless of nicotine content, that rely on vaporization 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. 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 the Minimum Legal Sales Age Prohibited: 1. 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; 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. The minimum legal sales age in [city/town] is [AGE]. 2. Required Signage a. In conformance with and in addition to Massachusetts General Law, Chapter 270, Section 7, a copy of Massachusetts General Laws, Chapter 270, Section 6, 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 Massachusetts Department of Public Health and made available from the [city/town] Board of Health. 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 4 feet or greater than 9 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 Massachusetts Department of Public Health. b. The owner or other person in charge of a shop or other place used to sell tobacco products, as defined herein, at retail shall conspicuously post signage provided by the [city/town] Board of Health that discloses current referral information about smoking cessation.  c. The owner or other person in charge of a shop or other place used to sell tobacco products, as defined herein, at retail shall conspicuously post a sign stating that “The sale of tobacco products, including e-cigarettes, to someone under the minimum legal sales age of [AGE] years is prohibited.” The notice 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 (4) feet or greater than nine (9) feet from the floor. 3. 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 [AGE] years old or older. Verification is required for any person under the age of 27. 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 or otherwise distribute tobacco products, as defined herein, within the [city/town] of [city/town] without first obtaining a Tobacco Product Sales Permit issued annually by the [city/town] Board of Health. Only owners of establishments with a permanent, non-mobile location in [city/town] are eligible to apply for a permit and sell tobacco products, as defined herein, at the specified location in [city/town]. 2. As part of the Tobacco Product Sales Permit application process, the applicant will be provided with the [city/town] regulation. Each applicant is required to sign a statement declaring that the applicant has read said regulation and that the applicant is responsible for instructing any and all employees who will be responsible for tobacco product sales regarding federal, state and local laws regarding the sale of tobacco and this regulation. 3. Each applicant who sells tobacco products is required to provide proof of a current Tobacco Retailer License issued by the Massachusetts Department of Revenue, when required by state law, before a Tobacco Product Sales Permit can be issued. 4. The fee for a Tobacco Product Sales Permit shall be determined by the [city/town] Board of Health annually. 5. A separate permit is required for each retail establishment selling tobacco products, as defined herein. 6. Each Tobacco Product Sales Permit shall be displayed at the retail establishment in a conspicuous place. 7. A Tobacco Product Sales Permit is non-transferable. A new owner of an establishment that sells tobacco products, as defined herein, must apply for a new permit. No new permit will be issued unless and until all outstanding penalties incurred by the previous permit holder are satisfied in full. 8. 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. 9. 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. 10. A Tobacco Product Sales Permit will not be renewed if the permit holder has sold a tobacco product to a person under the MLSA (§D.1) three times within the previous permit year and the time period to appeal has expired. The violator may request a hearing in accordance with §P.4. 11. Maximum Number of Tobacco Product Sales Permits. (a) At any given time, there shall be no more than [number (XX)] Tobacco Product Sales Permits issued in [city/town (reduced by the number of permits not renewed pursuant to subsection (b) below)]. 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) As of [date], any permit not renewed either because a retailer no longer sells tobacco products, as defined herein, or because a retailer closes the retail business, shall be returned to the [city/town] Board of Health and shall be permanently retired by the Board of Health and the total allowable number of Tobacco Product Sales Permits under paragraph 11(a) shall be reduced by the number of the retired permits. [NOTE: If this subsection is included, remove the last sentence of section 11(a) AND add to the end of the first sentence of subsection (a) the following phrase: “…reduced by the number of permits not renewed pursuant to §12(b).”] (c). A Tobacco Product Sales Permit shall not be issued to any new applicant for a retail location within 500 feet of a public or private elementary or secondary school as measured by a straight line from the nearest point of the property line of the school to the nearest point of the property line of the site of the applicant’s business premises. (d). Applicants who purchase an existing business that holds a current Tobacco Product Sales Permit at the time of the sale of said business must apply within sixty (60) days of such sale for the permit held by the Seller if the Buyer intends to sell tobacco products, as defined herein. F. Cigar Sales Regulated: 1. No person shall sell or distribute or cause to be sold or distributed a single cigar. 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 $5.00 or more. 3. This Section shall not apply to: a. The sale or distribution of any single cigar having a retail price of two dollars and fifty cents ($2.50) or more. b. 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 [city/town]. 4. The [city/town] 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. G. Sale of Flavored Tobacco Products Prohibited: No person shall sell or distribute or cause to be sold or distributed any flavored tobacco product, except in smoking bars and retail tobacco stores. H. Prohibition of the Sale of Blunt Wraps: No person or entity shall sell or distribute blunt wraps in [city/town]. I. 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. 4. Sections 2 and 3 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. J. 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. A retailer of Liquid Nicotine Containers must comply with the provisions of 310 CMR 30.000, and must provide the [city/town] Board of Health with a written plan for disposal of said product, including disposal plans for any breakage, spillage or expiration of the product. K. 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. [Additional Compromise Language: The only self-service displays that are permissible pursuant to U.S. FDA and Massachusetts Attorney General regulations are displays that are located in Retail Tobacco Stores that ensure that no person younger than the MLSA is present, or permitted to enter, at any time.] L. Vending Machines: All vending machines containing tobacco products, as defined herein, are prohibited. M. Non-Residential Roll-Your-Own Machines: All Non-Residential Roll-Your-Own machines are prohibited. N. Prohibition of the Sale of Tobacco Products by Health Care Institutions: No health care institution located in [city/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 drug store, shall sell or cause to be sold tobacco products, as defined herein. O. Prohibition of the Sale of Tobacco Products by Educational Institutions: No educational institution located in [city/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. P. Violations: 1. It shall be the responsibility of the establishment, permit holder and/or his or her business agent to ensure compliance with all sections of this regulation. The violator shall receive: a. In the case of a first violation, a fine of three hundred dollars ($300.00). [NOTE: Fines can be higher than these suggested fines; however if a fine is over $300, non- criminal disposition cannot be used as an enforcement tool.] b. In the case of a second violation within [24, 36] months of the date of the current violation, a fine of three hundred dollars ($300.00) and the Tobacco Product Sales Permit [shall/may] be suspended for fourteen (14) consecutive business days. c. In the case of three or more violations within a [24, 36] month period, a fine of three hundred dollars ($300.00) and the Tobacco Product Sales Permit [shall/may] be suspended for sixty (60) consecutive business days. d. In the case of four violations or repeated, egregious violations of this regulation within a [24, 36] month period, the Board of Health shall hold a hearing in accordance with §P.4 and may permanently revoke a Tobacco Product Sales Permit. 2. Refusal to cooperate with inspections pursuant to this regulation shall result in the suspension of the Tobacco Product Sales Permit for thirty (30) consecutive business days. 3. In addition to the monetary fines set above, any permit holder who engages in the sale or distribution of tobacco products while his or her permit is suspended shall be subject to the suspension of all Board of Health issued permits for thirty (30) consecutive business days. 4. The [city/town] 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 [city/town] Board of Health [shall/may] suspend or revoke the Tobacco Product Sales Permit if the Board of Health 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 non-criminal proceedings brought in court hereunder or under the Massachusetts General Laws for the same offense. All tobacco products, as defined herein, shall be removed from the retail establishment upon suspension or revocation of the Tobacco Product Sales Permit. Failure to remove all tobacco products, as defined herein, shall constitute a separate violation of this regulation. Q. 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 or by filing a criminal complaint at the appropriate venue. R. Separate Violations: Each day any violation exists shall be deemed to be a separate offense. S. Enforcement: Enforcement of this regulation shall be by the [city/town] 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 [city/town] Board of Health or its designated agent(s) and the Board shall investigate. T. 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. U. Effective Date: This regulation shall take effect on ____________________________________________, 2015. 1. ____________________________ 2. _____________________________ 3. _____________________________