MINNEAPOLIS -- Over the past several years, local boards of health in Massachusetts have adopted increasingly restrictive regulations on the sale of legal tobacco products. These restrictions include bans on tobacco product coupon redemptions, prohibitions on the sale of flavored tobacco products, restrictions on cigar package sizes, mandates for minimum retail cigar prices, and setting the minimum age to buy tobacco products at 21. To adopt these regulations, the boards of health have relied on a state statute that authorizes them to adopt reasonable regulations to protect the public health.
This statutory authority is now being relied on by the Westminster, Mass., Board of Health to propose a first of its kind ordinance banning the sale of all tobacco products and electronic nicotine delivering devices including electronic cigarettes, electronic cigars, and electronic pipes. Westminster is a town of approximately 7,400 residents and is located in Worcester County.
Since the average convenience store relies on tobacco sales for up to 40% of in-store sales, a total ban on tobacco product sales will financially cripple small retail businesses in Westminster. The negative impact will likely include employees losing their jobs and even the closure of local retail stores. Such a drastic outcome will occur because adults will simply travel a short distance to the next city or town to buy tobacco products. When this occurs, these adult customers will also purchase their gasoline and other products at stores in neighboring towns, which will further exacerbate the financial impact on Westminster retailers.
From a legal standpoint, this outcome could result in a lawsuit filed against the Town of Westminster because the property rights of retailers are being infringed. That is, a retailer has a right to sell legal products, including tobacco products. By prohibiting the sale of tobacco products, the Town of Westminster would be depriving retailers of that right. When a government entity deprives a citizen of a constitutional right, the party whose rights are taken away by a government is entitled to compensation. Moreover, the Westminster Board of Health is likely exceeding its authority because a total ban on tobacco sales is not reasonable and cannot be supported on any rational basis since there are so many less restrictive measures that can be considered short of prohibition.
Setting aside the potential for litigation, a ban on the sale of tobacco products by the Town of Westminster will not solve the problem of underage tobacco use. That is the case because the Centers for Disease Control’s National Youth Tobacco Survey demonstrates that most minors who use tobacco products obtain the products from “social sources.” These social sources include older friends, adult-age siblings, strangers, and even parents. So, until the issue of social sources is addressed through policy and further education, banning the sale of tobacco products will simply lead to economic harm to hardworking local retailers and their employees.
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