The Massachusetts Supreme Judicial Court (SJC) recently upheld, in a unanimous decision, the town of Brookline’s ordinance banning the sale of tobacco and e-cigarette products to anyone born after Jan. 1, 2000 (the Tobacco Sales Ban). Brookline is the first U.S. locality to impose a tobacco sales ban based on a specific date.

Given this recent victory, it is possible that other localities will follow in Brookline’s footsteps. Indeed, the UK is considering a similar generational ban. In any event, ordinances like the Tobacco Sales Ban create enforcement and implementation issues that may make them ineffective. For example, legal age consumers that want to purchase tobacco products can still buy them online or in a neighboring locality. Historically, attempts to ban the sale of consumer products have proven unsuccessful, with alcohol and marijuana serving as clear examples.

Background

During a special town meeting in November 2020, Brookline amended its Tobacco Control By-law to ban any person from selling tobacco or e-cigarette products to anyone born after January 1, 2000 (the Tobacco Sales Ban). The Tobacco Sales Ban applies to most tobacco and nicotine products, defining “tobacco” to include “any product containing, made, or derived from tobacco that is intended for human consumption, whether smoked, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means…” This prohibition includes e-cigarettes, which are also exhaustively defined. That said, the Tobacco Sales Ban does not appear to include products containing synthetically derived nicotine (i.e., not tobacco-derived), which represent a small, but growing segment of nicotine product sales.

The Tobacco Sales Ban also included signage provisions to replace language about the minimum sales age of 21 years old to simply state: “The sale of tobacco or e-cigarette products to someone born after 1/1/2000 is prohibited.”

After the Tobacco Sales Ban went into effect in 2021, a group of retailers sued Brookline, claiming that the Tobacco Sales Ban was preempted by a state law raising the minimum purchase age from 18 to 21 years old (the Tobacco Act) and that the Tobacco Sales Ban violated the Massachusetts Constitution’s equal protection rights. A lower court dismissed the case and the retailers appealed. On its own initiative, the SJC transferred the case from the appellate court.

The SJC’s Opinion

The Retailers’ Preemption Claim

The SJC cited to the Tobacco Act, which states:

This act shall preempt, supersede or nullify any inconsistent, contrary or conflicting state or local law relating to the minimum sales age to purchase tobacco products; provided, that this act shall neither preempt, supersede nor nullify any inconsistent, contrary or conflicting local law in effect on December 30, 2018 that prohibits the sale of tobacco products to persons under the age of [nineteen], [twenty], or [twenty-one] as applied to persons who attained the age of [eighteen] before December 31, 2018. This act shall not otherwise preempt the authority of any city or town to enact any ordinance, bylaw or any fire, health or safety regulation that limits or prohibits the purchase of tobacco products.

The SJC found that the last sentence above was evidence that that the legislature intended to limit the scope of the preemption in the first sentence. The SJC therefore interpreted the above provision to mean that the Tobacco Act preempts local laws that conflict with the minimum purchase age requirement. Based on this interpretation, the SJC found that the Tobacco Sales Ban merely augments the Tobacco Act by further limiting access to tobacco products by persons under the age of 21. Thus, the SJC concluded the Tobacco Sales Ban was not expressly preempted by the Tobacco Act.

The SJC further found that the Tobacco Sales Ban was not impliedly preempted by the Tobacco Act because it furthers the legislative intent of the Tobacco Act, which the court said includes protecting against the harmful effects of tobacco products and restricting the purchase and use of tobacco generally, and especially by youth and other vulnerable populations. The SJC further found that the Tobacco Sales Ban would not frustrate the main purpose of the Tobacco Act, which is to prohibit sales to those under 21 years old.

The Retailers’ Equal Protection Claim

The retailers also argued that the Tobacco Sales Ban discriminates on the basis of birth year and therefore violates the equal protection guarantees of the Massachusetts Constitution. The SJC noted that many of those born on or after January 1, 2000 can vote, including for a new tobacco bylaw, and those too young to vote have historically been subject to protections society deems appropriate. The SJC found that the Tobacco Sales Ban is rationally related to the furtherance of a legitimate state interest, which includes mitigating tobacco use by minors.

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This case is just one of many recent examples where state courts have decided not to find local tobacco laws preempted by state or federal tobacco laws. This trend signals that, in some states, local governments, especially those intent on tighter regulation of tobacco, are increasingly wielding more power over the tobacco industry, with the apparent consent of their state legislatures. Therefore, it is important for industry members to pay close attention to the local laws of the jurisdictions in which they do business.