Challenging The Bylaw Banning Tobacco Sales To People Born After 2000

Every few months for the past couple of years, there’s a new headline about some bodega or rogue independent distributor getting pinched for slinging Newports or illegal nicotine juice in Mass. The arrests all stem from a 2020 Bay State ban on flavored tobacco and electronic nicotine delivery system (ENDS) products, a measure intended to “discourage youth e-cigarette use” that included the banning of menthol cigarettes.

In the nearly three years since, there have been several small and large-scale busts involving colorful liquids and smokes smuggled in from states like New Hampshire. There’s a wild irony in Massachusetts creating a new illicit market where one didn’t exist just as recreational cannabis shops started opening up, and the negative impact has been widely noted. For various reasons including a significant loss of tax revenue and the criminal enterprises it has spawned, groups as far-ranging as the ACLU and Americans For Tax Reform oppose the flavor ban.

One of the most vocal groups against the ENDS and flavored tobacco restrictions is the New England Convenience Store and Energy Marketers Association. On top of their existing pains around this issue, they’re also now fighting a trend started by Brookline, which in 2020 passed a bylaw that “bans the sale of legal tobacco products to anyone born after Jan. 1, 2000, despite the fact that these products are codified in state law as legal for anyone over 21.” As the store owners explained in a media release, “The age-based prohibition has been appealed by several licensed Brookline retailers whose attorneys will argue before the SJC on November 6 that the regulation violates state law and should be struck down.”

Meanwhile, “Despite the pending legal challenge, town officials in Melrose, Wakefield and Stoneham are planning hearings this week to consider similar bylaws that would violate adults’ rights to purchase legal products.”

“These misguided attempts to skirt state law violate the civil liberties of adults who choose to purchase legal products from licensed and regulated retailers,” NECSEM Exec. Director Peter Brennan said in a statement. His trade organization is representing the retailers suing Brookline. “The law is clear that tobacco and nicotine products are legal for sale in a licensed, regulated establishment to anyone over the age of 21. Any attempt to violate this provision must be challenged.”

Brennan continued, “If permitted to stand, it would set a dangerous precedent by which local governments could selectively age-restrict legal products and activities for adults, including alcohol, lottery, sugary drinks and sweets, motor vehicle usage and cannabis, among others. Where does it end?”