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SJC: Stricter Local Bylaws Not Preempted By Massachusetts Tobacco Act

Posted by David Katz | Mar 11, 2024 | 0 Comments

No matter how much contract and business law changes in Massachusetts, companies and small businesses are still expected to keep up to date and in compliance with it. For gas stations, grocery stores, cigar shops, and all other retailers that sell tobacco in the state, those compliance requirements are likely to get more complex in the near future as the Supreme Judicial Court has given the green light to localized tobacco regulations.

The business attorneys at the Katz Law Group legally represent companies throughout central Massachusetts.

Recent Changes to Massachusetts' Tobacco Laws

Back in 2018, the commonwealth of Massachusetts passed the Tobacco Act, which raised the minimum age for buying tobacco from 18 to 21. Two years later, the town of Brookline went further. It forbade businesses in the town from selling tobacco products to anyone born after January 1, 2000, and required retailers to post conspicuous signage to that effect (Brookline Bylaw 8.23.5(d) and (h)).

In effect, this town bylaw would incrementally ban the sale of tobacco in Brookline.

Several retailers sued the town, claiming that the state's Tobacco Act preempted local bylaws like this one. The superior court dismissed the case, and the Supreme Judicial Court took over the appeal.

SJC: Brookline's Bylaw is Not Preempted by State Law

Preemption is the legal doctrine that higher levels of government can regulate conduct in ways that strip the power to further regulate it from lower levels of government. However, the higher level of government—the levels are local, state, and federal—can either explicitly preempt the field, stripping all regulatory power from lower levels, or can leave them to their own affairs.

For example, the regulations from the federal Food and Drug Administration (FDA) preempt state and local rules on medical devices: the federal Medical Device Amendments of 1976 explicitly forbids states from passing laws that are different in any way (21 U.S.C. § 360k(a)).

When there is no such explicit preemption from the higher level of government, though, lower levels are free to act, so long as what they do is not inconsistent with the law (G. L. c. 43B, § 13). In Massachusetts, courts give deference to local laws and only deem them preempted when they are in sharp conflict with state law (Bloom v. Worcester).

The Tobacco Act fell between these extremes. It explicitly preempted all “inconsistent, contrary or conflicting” local laws, but explicitly did not preempt local laws that further limited or prohibited the purchase of tobacco products.

Unsurprisingly, the Supreme Judicial Court ruled that Brookline's bylaw was consistent with the Tobacco Act and was therefore not preempted (Six Brothers, Inc., v. Brookline).

What This Means Moving Forward

For retailers that sell tobacco products in Brookline, it means that they will have to comply with the local ordinance that will slowly phase out their customers. Those customers, of course, will just go over the border to places like Newton or Needham.

For other tobacco retailers, the Supreme Judicial Court's ruling opens the door to other locales passing their own bylaws and ordinances that further restrict tobacco sales.

Business Lawyers at the Katz Law Group

While the ruling was expected and straightforward, the implications for tobacco retailers in Massachusetts are significant.

Small businesses and franchises that want to make sure that they are in compliance with all applicable laws or want to tap into the resources of an experienced business lawyer before starting a venture can call the Katz Law Group at (508) 480-8202 or contact the firm online.

About the Author

David Katz

Attorney David S.Katz is the founder and managing partner of the Katz Law Group, P.C., located in Westborough, Massachusetts...


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