To: Attorney General Maura Healey From: Carl V Phillips, PhD Chief Scientific Officer The Consumer Advocates for Smokefree Alternatives Association (CASAA)
[email protected] 24 April 2015 VIA email to
[email protected] Re: Proposed changes to 940 CMR 21.00: Sales And Distribution Of Cigarettes, Smokeless Tobacco Products, and Electronic Smoking Devices In Massachusetts The following comments on Proposed CMR 940 21.00 are submitted on behalf of The Consumer Advocates for Smokefree Alternatives Association (CASAA). They consist of a written adaptation of the oral testimony I gave in Boston on 23 April 2105, followed by our suggested markup of the regulation, per the suggestion that was made to me at the hearing. The latter consists of first the explanation of the changes made (overview and explanation) and then the marketup text of the regulation. CASAA is a nonprofit public health NGO. It is the leading representative of the interests of consumers and wouldbe consumers of lowrisk tobacco and nicotine products; it is a membership organization with over 50,0000 members; it does not represent the interests of industry. In addition to my current role as CASAA’s Chief Scientific Officer, I am also a former professor of public health, and I have been researching tobacco harm reduction for longer than almost anyone. I have been researching ecigarettes since they first entered the market. Tobacco harm reduction is the substitution of lowrisk alternatives for smoking, and it is the most promising way for many smokers to avoid the risks from smoking. The following comments are based on my own expertise as a researcher and familiarity with (to my knowledge) all the relevant scientific literature, as well as CASAA’s collective expertise. The basic scientific facts about ecigarettes are simple and overwhelmingly supported by scientific evidence: ● They are roughly 99% less harmful than smoking. 1
● They pose no conceivable risk to bystanders. ● Their use is almost completely as a substitute for smoking. ● In the order of one million Americans have quit smoking by switching to ecigarettes. Moreover, many former smokers who quit with ecigarettes had tried every other method and failed repeatedly, thinking they were doomed to smoke until they died. You cannot hear their stories and not be moved and inspired. I would encourage you to visit CASAA's Testimonials Project ( http://testimonials.casaa.org/ ) and read personal accounts of over 4000 people that have successfully employed tobacco harm reduction. So how does this relate to the regulations under consideration? After all, this is not one of those unconscionably terrible proposals that we often deal with that would try to ban or impose massive restrictions on ecigarettes. This regulation would, for example, quite rationally impose federal packaging standards, which we strongly support because it is genuinely beneficial to consumers and avoids creating a patchwork of different state regulations. The reason I emphasize the huge health benefits that have been created by ecigarettes is that they show ecigarettes are a proven effective way for many smokers to quit smoking, and that switching to ecigarettes is basically as beneficial as quitting entirely. But this is not always an easy transition and public policy should be designed to make it easier rather than more difficult. We would like to think that learning about the low risk alone is enough to get people to switch, but for many, what seems like a small barrier dooms them to keep smoking. We understand that most provisions of the regulation are designed to reduce access by teenagers (which I address below), but a few of them also interfere with adult smokers using ecigarettes to quit smoking. For example, the higher quality ecigarettes (which we usually refer to as “open systems”), the ones that are larger than cigarettes and sold by specialty merchants rather than in convenience stories, can be a bit complicated to use. Nothing that cannot be overcome, obviously, but it requires some mentoring as well as some trial and error to find hardware and liquid that works for the individual. A useful approach to this is being able to try the products in a vape store (ecigarette specialty retailer) before purchasing. Without that, many smokers who would have quit smoking will buy an ecigarette, use it wrong or not get what is best for them, and give up on it and continue smoking. We have heard this story over and over. Thus, we strongly urge you to remove the prohibition on sampling or free product for adults . 2
Similarly, convenient access to internet purchasing is crucial for the many residents of Massachusetts who do not live near a vape shop. This is generally not as good for smoking cessation as a retail store, but it is certainly better than no access. So why throw up needless barriers? Instead of requiring a particular ageverification method, one that creates extra steps and might cause some merchants to just not bother with Massachusetts consumers, there are numerous established methods of certified thirdparty age verification for online commerce. Broadening the allowable methods will benefit consumers without in any way weakening what the regulation accomplishes. We urge you to allow these more efficient ageverification methods . Our greatest concern is about the provision that localities can impose stronger regulations than the Commonwealth. We think this is a serious problem that will create a patchwork of conflicting regulations that will harm consumers by driving away the supply. A town that imposes an idiosyncratic packaging requirement might as well be issuing a sales ban, since manufacturers are unlikely to do a special production run for that county. Furthermore, local governments generally do not have the expertise to deal with complex scientific issues like this, and thus many get tricked into doing the bidding of whatever specialinterest captures someone’s ear, at the expense of their citizens. Thus, we urge you to declare that these regulations preempt more onerous local laws, and at the very least that it preempt those which provide no apparent benefits and impose extensive costs (details below). You have heard and will continue to hear claims from antiecigarette activists that include: ● we don’t know how harmful they might be; ● they are highly dangerous; they are highly addictive; we don’t know what is in them; ● there is no regulation; ● they are a gateway to smoking; ● they include flavors that are designed to attract children; ● and, worst of all, there is no evidence they help people quit smoking. Every last one of these claims is wrong. Not debatable. Not uncertain. But clearly wrong. Not one of them is supported by evidence and indeed, there is overwhelming evidence that every single one of the claims in this litany is false. We know what is in ecigarettes, and we have ample science that shows that it poses minimal hazard. A particular speaker may personally not know some of these scientific facts, of course, but that is because he is talking about something he does not understand. The experts do know. It turns out that nicotine by itself is generally regarded by experts in that area as not addictive, and there is no evidence anyone has ever gotten hooked on ecigarettes. Ecigarette users often report that though they did not think they could ever quit smoking, once they used ecigarettes 3
exclusively for a while, they found they could take it or leave it. There is literally no reason to believe that the availability or use of ecigarettes would turn a wouldbe nonsmoker into a smoker. There is literally no evidence that interesting flavors are attracting children who would have otherwise not have tried an ecigarette, but overwhelming evidence that adults like them and very compelling evidence that their availability was what allowed many adults to completely quit smoking. And, in case it is not obvious, each one of the millions of people worldwide who have quit smoking using ecigarettes is evidence that they help people quit smoking. The many who have reported that they tried everything else first, which did not work, are more compelling still. It boggles the mind that anyone would even try to sell the patently absurd claim that there is no evidence. Those outandout falsehoods are recited either by people who were told something and who blindly repeat it without having any idea whether it is true, or by special interests with hidden agendas that do not include protecting the health and freedom of consumers. They count on never having to stand up to cross examination, because their experience is that no one is going to push back against antitobacco or antinicotine rhetoric, no matter how blatantly unscientific. If cross examined, half of them could not even define their terms or actually explain the scientific claims they are making; almost none of them could tell you what the scientific record shows beyond maybe cherrypicking one result. They want you to think of the children. That is perfectly understandable. But keep in mind that of all the substances teenagers experiment with, smokefree tobacco and nicotine products are probably the least hazardous. Also keep in mind that the statistics you have seen about teenagers and ecigarettes are based on surveys that ask if someone has ever taken so much as one puff of an ecigarette, perhaps one that did not even contain nicotine. A “yes” answer has been misconstrued, by those who seek to manipulate rather than inform policy, as someone being “a user.” To the extent that we can estimate actual use by teenagers rather than occasional toying, it appears to be quite low and overwhelming concentrated among those who smoke or already quit smoking. That is, teenagers are mostly using ecigarettes for the same good reasons that adults are, as a lowrisk substitute for smoking. That said, CASAA supports regulations that prohibit sales to minors for obvious reasons. However, everyone needs to be realistic and recognize that there is no way to make this a complete barrier. Teenagers who want to consume cigarettes and alcohol have no trouble doing so despite minor sales bans; those who want cannabis and many other controlled substances also find them, despite blanket sales bans. Thus, it makes no sense to impose restrictions on adults based on an unsubstantiated guess that they might make it eversoslightly harder for teenagers to 4
get the products. Even the relatively minor restrictions in the proposed regulation – let alone the draconian ones that some localities will impose – will be enough to cause at least a few smokers who would have switched to not do so, which will kill people . That is what is at stake here. Explanations for Proposed Amendments to the Regulation The phrase “electronic smoking device”: This phrase is technically incorrect, highly misleading, and inflammatory. Indeed, the term was created in order to be inflammatory and mislead, and we trust that this was not your intention. There are actual electronic smoking devices in the world, but ecigarettes are not among them, making this a brightline error. Ecigarettes produce no smoke, so there is no smoking. The term is engineered rhetoric designed to imply that there is more similarity between smoking and vaping, the latter of which (in contrast with the former) has very low risk to users, no conceivable risk to bystanders, and trivial aesthetic impact. It is inappropriate as a matter of public policy to use the term “electronic smoking device.” We have suggested the term “vapor product” which is increasingly the preferred term. “Electronic cigarette” would also work. These are accurate and appropriately neutral descriptors. Point of sale: As noted above, there is great public health value in allowing sampling of ecigarettes. Thus vapor products have been removed from the blanket ban on free sampling. A ban on providing such samples to those under 18 has been added. Mailorder age verification: As noted above, there are established methods that are employed for age verification in internet commerce that are just as effective (indeed, probably more effective) than the single somewhat onerous procedure offered in the regulation. Allowing these other options will prevent sellers from refusing to sell to Massachusetts consumers to avoid the hassle of the idiosyncratic requirement. Allowing additional alternatives for verification will also reduce barriers for legitimate adult consumers without making it any easier for minors to gain illicit access; this will tend to increase the number of people who quit smoking. We have added language to offer these as options. Packaging: We added language that would prevent this from inadvertently banning prefilled products (cartridges) wherein the nicotine solution is contained in the device in hardware that cannot be opened by the consumer. Local preemption: As noted above, local idiosyncratic packaging and labeling laws could amount to de facto sales bans, and are generally bad public policy. Indeed, a patchwork of local requirements on many of these issues (including age verification requirements) would have 5
similar effects on commerce for no benefit. We have proposed changes that specifically address packaging and labeling. We would prefer that several other provisions, or indeed the entire regulation, would preempt more onerous local laws. We believe that it is better for consumers and genuine public health concerns for substantive regulation on many of these issues to be handled at the state level rather than the local. One particular addition to the preemptions we suggested would be to prevent localities from prohibiting free sampling by adults in specialty retailer stores, per the above observations about its great public health benefits.
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Markup with proposed amendments (original markup in red; CASAA’s proposed changes in blue) 940 CMR 21.00: Sales And Distribution Of Cigarettes, Smokeless Tobacco Products, and Electronic Smoking Devices In Massachusetts 21.01: Purpose 21.02: Scope 21.03: Definitions 21.04: Point of Sale Restrictions 21.05: Liquid Nicotine Packaging 21.06 : Relation to Other Laws 21. 06 07: Severability 21. 07 08: Effective Date 21.01: Purpose The Attorney General of Massachusetts promulgates 940 CMR 21.00 relating to cigarette and , smokeless tobacco product , and [ electronic smoking device ] vapor product manufacturers and retailers pursuant to his authority in M.G.L. c. 93A, s. 2(c). The purpose of 940 CMR 21.00 is to eliminate deception and unfairness in the way cigarettes and , smokeless tobacco products , and [ electronic smoking devices ] vapor products are marketed, sold and distributed in Massachusetts in order to address the incidence of cigarette smoking and , the use of smokeless tobacco use , and [ electronic smoking devices ] vapor products by children , including all persons under the legal age to purchase these products as established by statute, regulation, or local ordinance . 940 CMR 21.00 imposes requirements and restrictions on the sale and distribution of cigarettes and smokeless tobacco products and [ electronic smoking devices ] vapor products in Massachusetts in order to prevent access to such products by underage consumers. 21.02: Scope The Attorney General's regulations define unfair or deceptive acts or practices. They are not intended to be all inclusive as to the types of activities prohibited by M.G.L. c. 93A, s. 2(a) and they do not legitimize acts or practices not specifically prohibited by 940 CMR 21.00. 940 CMR 21.00 is designed to supplement existing regulations. All references in 940 CMR 21.00 to statutes and other regulations shall include amendments made to such statutes and regulations after the effective date of 940 CMR 21.00. 7
940 CMR 21.00 shall apply to any person who manufacturers manufactures , packages, imports for sale, sells or distributes or sells within Massachusetts cigarettes and , smokeless tobacco products , or [ electronic smoking devices ] vapor products as defined in 940 CMR 21.00. 940 CMR 21.00 shall not apply to the manufacture, packaging, importation for sale or distribution within Massachusetts of cigars and little cigars. These products are regulated by 940 CMR 22.00 et seq. 21.03: Definitions AdultOnly Retail Facility means a facility where the retailer ensures that no person younger than 18 years old is present or permitted to enter at any time. Advertisement (including the terms "advertise" and "advertising") means any oral, written, graphic, or pictorial statement or representation, made by, or on behalf of, any person who manufactures, packages, imports for sale, distributes or sells within Massachusetts cigarettes or , smokeless tobacco products , or [ electronic smoking devices ] vapor products , the purpose or effect of which is to promote the use or sale of the product. Advertisement includes, without limitation, any picture, logo, symbol, motto, selling message, graphic display, visual image, recognizable color or pattern of colors, or any other indicia of product identification identical or similar to, or identifiable with, those used for any brand of cigarette or , smokeless tobacco product . , or [ electronic smoking devices ] vapor product . ,. This includes, without limitation, utilitarian items and permanent or semipermanent fixtures with such indicia of product identification such as lighting fixtures, awnings, display cases, clocks and door mats, but does not include utilitarian items with a volume of 200 cubic inches or less. The terms "advertisement," "advertise," and "advertising" shall be interpreted in a manner which is consistent with the definition of the same terms in the Attorney General's Retail Advertising Regulations, 940 CMR 6.00. Brand Name means a brand name (alone or in conjunction with any other word), trademark, logo, symbol, motto, selling message, recognizable pattern of colors, or any other indicia of product identification identical or similar to, or identifiable with, those used for any brand of cigarette or smokeless tobacco , smokeless tobacco, or [ electronic smoking device ] vapor product . Cigarette shall be defined as that term is defined in the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. §§ 1331 et seq . 8
Cigarette shall be defined as that term is defined in the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. §§ 1331 et seq. Clear and Conspicuous shall be defined in a manner which is consistent with the definition provided by the applicable sections of the Attorney General's Retail Advertising Regulations, 940 CMR 6.00. Distributor means any person who furthers the distribution of cigarettes or , smokeless tobacco, or [ electronic smoking devices ] vapor products whether domestic or imported, at any point from the original place of manufacture to the person who sells or distributes the product to individuals for personal consumption. [ Electronic smoking device ] Vapor product means any product that can deliver nicotine to the user through inhalation of vapor. [ “Electronic smoking device” ] ”Vapor product” includes any component part of such product whether or not sold separately as intended for use in a completed vapor product, any vapor cartridge or other container with or without nicotine that is intended for use in a vapor product, and does not include any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product and is being marketed and sold solely for the approved purpose. Manufacturer means any person, including any repacker and/or relabeler, who manufactures, fabricates, assembles, processes, or labels a finished cigarette or , smokeless tobacco product , or [ electronic smoking device ] vapor product . Package means a pack, box, carton, pouch, or container of any kind in which cigarettes or , smokeless tobacco products , or [ electronic smoking devices ] vapor products , are offered for sale, sold, or otherwise distributed to consumers. Playground means any outdoor premises or grounds owned or lawfully operated by or on behalf of, the State, any State agency, or any political subdivision of the State, or any public, private or parochial school, any child day care center or any youth center, which contains any device, structure or implement, fixed or portable, used or intended to be used by persons under the age of 18 for recreational or athletic purposes including, but not limited to, play equipment such as a sliding board, swing, jungle gym, sandbox, climbing bar, wading pool, obstacle course, swimming pool, seesaw, baseball diamond, athletic field, or basketball court. Point of sale means any location at which a consumer can purchase or otherwise obtain cigarettes or , smokeless tobacco products, or [ electronic smoking devices ] vapor products [,] for personal consumption. 9
Retailer means any person who sells cigarettes or , smokeless tobacco products, or [ electronic smoking devices ] vapor products to individuals in Massachusetts for personal consumption, or who operates a facility located within Massachusetts where vending machines are located. Sale or distribution shall be defined to include the exchange of cigarettes, smokeless tobacco, or [ electronic smoking devices ] vapor products for money and the sampling or any other distribution of cigarettes, smokeless tobacco, or [ electronic smoking devices ] vapor products not for sale. Secret shopper program shall be defined to include, at a minimum, six visits per year to a retail sales outlet by a person retained by a retailer, where the person poses as a customer in order to ensure compliance by the outlet's employees compliance with laws and/or local ordinances prohibiting the sale of cigarettes, smok e less tobacco products, or [ electronic smoking devices ] vapor products to minors, with each visit made on a different day and at a different time, and, where practical, to a different outlet employee. Smokeless Tobacco shall be defined as that term is defined in the Federal Comprehensive Smokeless Tobacco Health Education Act of 1986 , 15 U.S.C. §§ 4401 et seq . 21.04: Point of Sale Restrictions (1) Retail Sales Practices. Except as otherwise provided in 940 CMR 21.04(4), it shall be an unfair or deceptive act or practice for any manufacturer, distributor or retailer to engage in any of the following practices: (a) sampling, promotional giveaways, or any other free distribution of cigarettes or [ , ] or smokeless tobacco products[ , or electronic smoking devices ] ; (b) sampling, promotional giveaways, or any other free distribution of vapor products to any person under the age of 18 years of age; (c) [ (b) ] breaking or otherwise opening any cigarette or , smokeless tobacco product, , or [ electronic smoking device’s ] vapor product’s package to sell or distribute any number of unpackaged or repackaged cigarettes or any quantity of smokeless tobacco or [ electronic 10
smoking devices ] vapor products that is smaller than the smallest package distributed by the manufacturer for individual consumer use; distribution of (d) [ (c) ] distributing cigarettes or , smokeless tobacco products , or [ electronic smoking devices ] vapor products through the mail, including redemption of coupons, credits and proofsofpurchase, except as otherwise provided in 940 CMR 21.00; sale (e) [ (d) ] selling or distribution of distributing cigarettes or , smokeless tobacco products if any , or [ electronic smoking devices ] vapor products where apparel or other merchandise (other than cigarettes or , smokeless tobacco ) which , or [ electronic smoking devices ] vapor products ) bears a brand name and is offered in consideration of the purchase of cigarettes, tobacco products, and [ electronic smoking devices ] vapor products . (2) Retail Outlet Sales Practices. Except as otherwise provided in 940 CMR 21.04(4), it shall be an unfair or deceptive act or practice for any person who sells or distributes cigarettes or , smokeless tobacco products , or [ electronic smoking devices ] vapor products through a retail outlet located within Massachusetts to engage in any of the following retail outlet sales practices: (a) Selling cigarettes or , smokeless tobacco products , or [ electronic smoking devices ] vapor products in any manner other than in a direct, facetoface exchange without the assistance of any vending machines or any other electronic or mechanical device, except as otherwise provided in 940 CMR 21.00; (b) Failing to verify by means of valid governmentissued photographic identification that each person purchasing cigarettes or , smokeless tobacco , or [ electronic smoking devices ] vapor products is 18 years of age or older. No such verification is required for any person who appears 27 years of age or older; (c) Using selfservice displays of cigarettes or , smokeless tobacco products , or [ electronic smoking devices ] vapor products ; (d) Failing to place cigarettes and , smokeless tobacco products , or [ electronic smoking devices ] vapor products out of the reach of all consumers, and in a location accessible only to retail outlet personnel. (3) Retail Outlet Prevention Measures. 11
It shall be an unfair or deceptive act or practice for any person who sells or distributes cigarettes or , smokeless tobacco products , or [ electronic smoking devices ] vapor products through a retail outlet located within Massachusetts to sell cigarettes or , smokeless tobacco products , or [ electronic smoking devices ] vapor products to consumers without implementing all prevention measures reasonably necessary to prevent the sale of cigarettes , [ or] smokeless tobacco products , or vapor products to consumers younger than 18 years old. A person is presumed to have complied with this provision if such person has implemented the following prevention measures: (a) For any retailer who employs six or more persons, undertaking an inhouse secret shopper program at all retail outlets as a routine part of its business, and implementing and operating the prevention measure set forth in 940 CMR 21.04(3)(b). A retailer who receives during any calendar year official written notification from a state or local governmental authority of passing a tobacco compliance check is presumed to comply with this prevention measure for the next calendar year as to each retail sales outlet referenced in such notification as passing the compliance check; (b) For any retailer who employs five or fewer persons, implementing and operating a training program for all employees who handle exchanges of cigarettes or , smokeless tobacco products , or [ electronic smoking devices ] vapor products regarding compliance with laws and/or local ordinances prohibiting the sale of tobacco such products to minors. A model training program for tobacco retailers is available to all retailers at the Office of the Attorney General; (4) Exceptions to Prohibited Retail Sales and Retail Sales Outlet Practices . The following retail sales and retail sales outlet practices are not unfair or deceptive: (a) Mailorder sales, excluding mailorder redemption of coupons and distribution of free samples through the mail, that are subject to verification that the purchaser is not younger than 18 years old. 1. For cigarettes or smokeless tobacco products, v [V]erification of age through the mail shall consist of, at a minimum, ensuring that the person to whom the product is being sent supplies a legible photocopy of a valid governmentissued identification; 2. For vapor products, verification of age through the mail shall consist of, at a minimum: 12
(i) The retailer shall attempt to match the name, address, and date of birth provided by the customer to information contained in records in a database of individuals whose age has been verified to be 18 years or older by reference to an appropriate database of government records kept by the distributor, a direct marketing firm, or any other entity. The distributor or seller shall also verify that the billing address on the credit card or other digital payment method offered for payment by the purchaser matches the address listed in the database and is the same name and address to which the products will be shipped. (ii) If the retailer is unable to verify the age of the customer pursuant to Section 21.04(4)(a)(2)(i), the retailer shall ensure the person to whom the product is being sent supplies a legible photocopy of a valid governmentissued identification. The retailer shall also verify that the billing address on the credit card provided by the consumer matches the address listed in the form of government identification. (iii) The requirements of (i) and (ii) of Section 21.04(4)(a)(2) are only required on the first purchase made by this customer, unless future orders request a different shipping address than has been verified previously (b) Vending machines that are located in adult only retail facilities licensed under M.G.L. c. 138, s. 12, to serve alcoholic beverages for consumption on the premises, if the vending machine: 1. is equipped with a lockout device that locks out sales from the vending machine unless the locking mechanism is released by an outlet employee. The release mechanism must not allow continuous operation of the vending machine and must be out of the reach of all consumers and in a location accessible only to outlet personnel; and 2. is located within the immediate vicinity and exclusive control of outlet personnel such that all purchases are observable by the outlet employee(s) controlling the lockout device; and 3. is posted with a sign stating that minors are not permitted to purchase tobacco and notifying customers of the lockout device and identifying the outlet employee(s) to contact to purchase tobacco from the machine. (c) Selfservice displays that are located within adultonly retail facilities. (a) Within an adultonly retail facility, distribution of no more than one free sample per day to an individual adult. With respect to cigarettes, “sample” means one pack of cigarettes in the smallest size package distributed by the manufacturer for individual consumer use. With respect to smokeless tobacco, “sample” means one can of smokeless 13
tobacco in the smallest size can distributed by the manufacturer for individual consumer use. (5) Advertising Restrictions. Except as provided in 940 CMR 21.04(6), it 21.05: Liquid Nicotine Packaging It shall be an unfair or deceptive act or practice for any manufacturer, distributor person to sell or retailer to engage in any of the following practices: Outdoor advertising, including advertising in enclosed stadiums and advertising from within distribute nicotine in a retail establishment that is directed toward liquid or visible from the outside of the establishment, in any location that is within a 1,000 foot radius of any public playground, playground area in a public park, elementary school gel substance in Massachusetts unless the liquid or secondary school; gel product is contained in a childresistant package that, at a minimum, meets the standards for special packaging as set forth in 15 U.S.C. 14711476; 16 CFR §1700 et seq., as in effect on the effective date of this regulation. This section shall not apply to any liquid or gel product containing nicotine in a cartridge, provided that such cartridge is prefilled and sealed by the manufacturer, and not intended to be opened by the consumer. (a) Pointofsale advertising of cigarettes or smokeless tobacco products any portion of which is placed lower than five feet from the floor of any retail establishment which is located within a one thousand foot radius of any public playground, playground area in a public park, elementary school or secondary school, and which is not an adultonly retail establishment. (6) Exception to Prohibited Advertising Practices. The following advertising practice is not unfair or deceptive: A retailer may place one sign no larger than 576 square inches and containing only black text on a white background stating “Tobacco Products Sold Here” on the outside or visible from the outside of each location where such products are offered for sale. 21. 05 06: Relation to Other Laws Nothing in 940 CMR 21.00 shall relieve any person from liability at common law or under Massachusetts statutory law to any other person. No city, town, or board of health shall have the authority to enact any law, ordinance, bylaw, regulation or rule involving packaging or labeling requirements of vapor products or nicotine 14
liquid containers. Except in the case of packaging or labeling requirements of vapor products or nicotine liquid containers, n [N]othing in 940 CMR 21.00 shall be construed to preempt any existing law, ordinance, bylaw, regulation or rule which requires a permit or license for the sale of cigarettes, smokeless tobacco products , or [ electronic smoking devices ] vapor products , or which regulates the sale, use, or distribution of cigarettes, smokeless tobacco products , or [ electronic smoking devices ] vapor products . Except in the case of packaging or labeling requirements of vapor products or nicotine liquid containers, n [N]othing in this regulation shall prohibit any city, town or board of health from enacting or enforcing any law, ordinance, bylaw, regulation or rule which requires a permit or license for the sale of cigarettes, smokeless tobacco products , or [ electronic smoking devices ] vapor products , or which regulates the sale, use, or distribution of cigarettes, smokeless tobacco products , or [ electronic smoking devices ] vapor products . Without limiting the generality of the foregoing, nothing in 940 CMR 21.00 shall prohibit any city, town, or board of health from enacting or enforcing any law, ordinance, bylaw, regulation or rule which imposes a monetary penalty, permit suspension or permit revocation for a violation of the local law. In cases where the ordinance, bylaw, regulation or rule does not involve the packaging or labeling requirements of vapor products or nicotine liquid containers and is more restrictive than the provisions of 940 CMR 21.00, it shall control to the extent of any inconsistency with 940 CMR 21.00. 21. 06 07 : Severability If any provision of 940 CMR 21.00 or the application of such provision to any person or circumstances is held to be invalid, the validity of the remainder of 940 CMR 21.00 and the applicability of such provision to other persons or circumstances shall not be affected. 21.0708: Effective Date 940 CMR 21.00 shall be effective on February 1, 2000. __________, 2015.
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