Massachusetts

Clean Indoor Air

Public Places

Smoking is prohibited in almost all public places and workplaces, including restaurants and bars. See the statute cited below for a more detailed list. Exceptions include: 1) private residences, except during such time when the residence is utilized as part of a business as a group childcare center, school age day care center, school age day or overnight camp, or a facility licensed by the office of child care services or as a health care related office or facility; 2) membership associations as defined if the premises is owned, or under a written lease for a term of not less than 90 consecutive days, is not located in a public building, and the space is restricted by the association to admittance only of its members, the invited guest of a member, and the employees of the membership association; 3) hotel/motel rooms designated as smoking rooms; 4) retail tobacco stores as defined; 5) smoking bars as defined; 6) in the course of professional film production, if smoking is part of the theatrical production; 7) by a person, organization or other entity that conducts medical or scientific research on tobacco products; 8) religious ceremonies where smoking is part of the ritual; and 9) a tobacco farmer, leaf dealer, manufacturer, importer, exporter, or wholesale distributor of tobacco products, may permit smoking in the workplace for the sole purpose of testing said tobacco for quality assurance purposes.

MASS. GEN. LAWS ch. 270, § 22 (2004).

Smoking in a public conveyance, or in a terminal or other facility of the Massachusetts Bay Transportation Authority is prohibited. Those who violate this law must appear in court or pay a fine of $25. Failure to comply warrants a criminal complaint; individuals who do not appear in court in response to this complaint are subject to arrest and may be punished by a fine of no more than $100, or not more than 10 days in prison, or both.

MASS. GEN. LAWS ch. 161A § 42 and ch. 272 § 43A (1993).

Government Buildings

Smoking is prohibited in the statehouse, in a public building or in a vehicle or vessel owned, leased, or otherwise operated by the commonwealth or a political subdivision thereof, or in a space occupied by a state agency or department of the commonwealth which is located in another building, including a private office in a building or space mentioned in this sentence, or at an open meeting of a governmental body, or in a courtroom or courthouse. This shall not apply to a resident or patient of a state hospital, the Soldiers’ Home in Massachusetts located in the city of Chelsea or the Soldiers’ Home in Holyoke. “Public building” is defined as a building owned by the commonwealth or any political subdivision thereof, or in an enclosed indoor space occupied by a state agency or department of the commonwealth which is located in a building not owned by the commonwealth.

MASS. GEN. LAWS ch. 270, § 22 (2004).

Private Workplaces

It shall be the responsibility of the employer to provide a smokefree environment for all employees working in an enclosed workplace. To that end, smoking is prohibited in all indoor areas of workplaces. Workplace” is defined as an indoor area, structure or facility or a portion thereof, at which one or more employees perform a service for compensation for the employer, other enclosed spaces rented to or otherwise used by the public; and where the employer has the right or authority to exercise control over the space.

MASS. GEN. LAWS ch. 270, § 22 (2004).

Schools

Smoking is prohibited in any school, college, and university.

MASS. GEN. LAWS ch. 270, § 22 (2004).

Students in primary or secondary public schools in the Commonwealth are prohibited from using tobacco products of any type on school grounds during normal school hours.

MASS. GEN. LAWS ANN. ch. 71, § 2A (1987).

Child Care Centers

Smoking is prohibited in group childcare centers, school-age day care centers, family day care centers and school age day or overnight camp buildings. Home-based child care facilities are specifically included.

MASS. GEN. LAWS ch. 270, § 22 (2004).

Health Facilities

Smoking is prohibited in health care facilities. “Health care facility” is defined as any hospital, nursing home, extended care facility, state health or mental institution, clinic, physician’s office or health maintenance organization licensed or otherwise operating legally within the commonwealth. However, a nursing home and any acute care substance abuse treatment center under the jurisdiction of the commonwealth, may apply to the local board of health having jurisdiction over the facility for designation of part of the facility as a residence. The residential area shall not contain an employee workspace, such as offices, restrooms or other areas used primarily by employees. The entire facility may not be designated as a residence. The designated residential area must be for the sole use of permanent residents of the facility. No temporary or short-term resident may reside in the residential portion of the facility. All areas in the designated residential area in which smoking is allowed shall be conspicuously designated as smoking areas and be adequately ventilated to prevent the migration of smoke to nonsmoking areas.

MASS. GEN. LAWS ch. 270, § 22 (2004).

Restaurants

Restaurants: Smoking is prohibited in all restaurants.

MASS. GEN. LAWS ch. 270, § 22 (2004).

Bars: Smoking is prohibited in bars. Smoking bars, which are defined as establishments that occupy exclusively an enclosed indoor space and that primarily are engaged in the retail sale of tobacco products for consumption by customers on the premises; derives revenue from the sale of food, alcohol or other beverages that is incidental to the sale of the tobacco products; prohibits entry to a person under the age of 18 years of age during the time when the establishment is open for business; prohibits any food or beverage not sold directly by the business to be consumed on the premises; maintains a valid permit for the retail sale of tobacco products as required to be issued by the appropriate authority in the city or town where the establishment is located; and, maintains a valid permit to operate a smoking bar issued by the Department of Revenue, are exempt.

MASS. GEN. LAWS ch. 270, § 22 (2004).

Penalties/Enforcement

An owner, manager or other person in control of a building, vehicle or vessel who violates this section, in a manner other than by smoking in a place where smoking is prohibited, shall be punished by a fine of $100 for the first violation, $200 for a second violation within two years of the first violation and $300 for a third and subsequent violation within two years of the second violation. Each calendar day on which a violation occurs shall be considered a separate offense. If an owner, manager or other person in control of a building, vehicle or vessel violates this section repeatedly, demonstrating egregious noncompliance as defined by regulation of the Department of Public Health, the local board of health may revoke or suspend the license to operate and shall send notice of the revocation or suspension to the Department of Public Health. An individual or person who violates this section by smoking in a place where smoking is prohibited shall be subject to a civil penalty of $100 for each violation. Any person may register a complaint to initiate an investigation and enforcement with the local board of health, the Department of Public Health, or the local inspection department or the equivalent.

MASS. GEN. LAWS ch. 270, § 22 (2004).

Tobacco Excise Tax

Cigarettes

Tax rate per pack of 20: $2.51

Date last changed: July 1, 2008 — from $1.51 to $2.51

Year first enacted: 1939

MASS. GEN. LAWS ch. 64C, §§ 6 (2008), 7A (2002) & 7C (2002).

A portion of cigarette tax revenue as specified is dedicated to the Commonwealth Care Trust Fund to pay for the state’s program to provide health insurance to all Massachusetts residents.

MASS. GEN. LAWS ch. 64C, § 6 (2008).

Twenty-five cents of the cigarette excise tax is dedicated to the Children’s and Senior’s Health Care Assistance Fund.

MASS GEN. LAWS ch. 64C, § 7A (1996); & ch. 29 § 2FF (2003).

The remainder of the revenue from the cigarette excise tax is credited 40 percent of the amount exceeding $169,800,000 to the Local Aid Fund and the remainder of the revenue to the General Fund.

MA GEN. LAWS. ch. 64C, § 28 (1992).

Other Tobacco Products

Little cigars: $2.51 per 20 cigars;

Chewing tobacco and snuff: 90% of the wholesale price;

Cigars and smoking tobacco: 30% of the wholesale price

MASS. GEN. LAWS ch. 64C, §§ 6 (2008), 7A (2002), 7B (2008), & 7C (2002).

Twenty-five percent of the tax on chewing tobacco and snuff, and 15 percent of the tax on cigars and smoking tobacco is credited to the Children’s and Senior’s Health Care Assistance Fund.

MA GEN. LAWS ch. 64C, §§ 7A & 7B (1996); & ch. 29 § 2FF (2003).

The remainder of the revenue is credited 40 percent of the amount exceeding $169,800,000 to the Local Aid Fund and the remainder of the revenue to the General Fund.

MASS. GEN. LAWS ch. 64C, § 28 (1992).

Revenue Collected

$417,594,000

Youth Access

Compliance/Enforcement

Photo ID: It shall be an unfair or deceptive act or practice for any person who sells or distributes cheap cigarettes or smokeless tobacco products through a retail outlet located within Massachusetts to fail to verify by means of a valid government-issued photographic identification that each person purchasing cigarettes or smokeless tobacco is 18 years of age or older. No such verification is required for any person who appears 27 years of age or older. Violation is subject to a civil penalty of not more than $5,000 plus costs of investigation and litigation, including attorney’s fees.

MASS. GEN. LAWS ch. 93A §§ 2 & 4 & CODE of MASS. REGS. tit. 940, § 21.04 (2000).

A separate identical regulation to the one above applies to cigars and little cigars. Violation is subject to a civil penalty of not more than $5,000 plus costs of investigation and litigation, including attorney’s fees.

MASS. GEN. LAWS ch. 93A §§ 2 & 4 & CODE of MASS. REGS. tit. 940, § 22.06 (2000).

Penalties for Sales to Minors

Whoever sells or gives tobacco in any form to a person under the age of 18 shall be punished by a fine of not less than $100 for the first offense, not less than $200 for a second offense, and not less than $300 for subsequent offenses. This does not apply to tobacco given by the parents or guardian of the child.

MASS. GEN. LAWS ch. 270, § 6 (1985).

Whoever sells cigarette rolling papers to any person under the age of 18 shall be punished by a fine of not less than $25 for the first offense, $50 for the second offense and $100 for subsequent offenses. No city, town, department, board or other political subdivision or agency of the commonwealth may impose any requirements, restrictions, or prohibitions pertaining to the sale of cigarette rolling papers, in addition to those in this section, notwithstanding any ordinance or regulation that was in effect before February 20, 1996.

MASS. GEN. LAWS ch. 270, § 6A (1995).

Placement of Tobacco Products

It shall be an unfair or deceptive act or practice for any person who sells or distributes cigarettes or smokeless tobacco products through a retail outlet located within Massachusetts to engage in the use of self-service displays of cigarettes or smokeless tobacco products or fail to place cigarettes and smokeless tobacco products out of the reach of all consumers, in a location accessible only to outlet personnel. Self-service displays are allowed if located within adult-only retail facilities. Violation is subject to a civil penalty of not more than $5,000 plus costs of investigation and litigation, including attorney’s fees.

MASS. GEN. LAWS ch. 93A §§ 2 & 4 & CODE of MASS. REGS. tit. 940, § 21.04 (2000).

A separate regulation identical to the above regulation applies to cigars and little cigars. Violation is subject to a civil penalty of not more than $5,000 plus costs of investigation and litigation, including attorney’s fees.

MASS. GEN. LAWS ch. 93A §§ 2 & 4 & CODE of MASS. REGS. tit. 940, § 22.06 (2000).

Sign Posting

The owner or person in charge of a place that sells cigarettes at retail shall conspicuously post a copy of the law concerning tobacco sales to minors. Whoever violates this provision shall be punished by a fine of not more than $50. Any person who unlawfully removes the required sign shall be fined $10.

MASS. GEN. LAWS ch. 270, § 7 (1995).

Other Provisions

It shall be an unfair or deceptive act or practice for any manufacturer, distributor or retailer to engage in the distribution of cigarettes or smokeless tobacco products through the mail, including redemption of coupons, credits and proofs-of-purchase. Exempts mail-order sales, excluding mail-order redemption of coupons and distribution of free samples through the mail, that are subject to age verification. Verification 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 government-issued identification and is over the age of 18. Violation is subject to a civil penalty of not more than $5,000 plus costs of investigation and litigation including attorney’s fees.

MASS. GEN. LAWS ch. 93A § 2 & 4 & CODE of MASS. REGS. tit. 940, § 21.04 (2000).

A separate, identical regulation to the one above applies to cigars and little cigars. Violation is subject to a civil penalty of not more than $5,000 plus costs of investigation and litigation including attorney’s fees.

MASS. GEN. LAWS ch. 93A §§ 2 & 4 & CODE of MASS. REGS. tit. 940, § 22.06 (2000).

Restrictions on Distribution of Tobacco Product Samples or Sales of Single Cigarettes

Samples

It shall be an unfair or deceptive act or practice for any manufacturer, distributor or retailer to engage in sampling, promotional give-aways, or any other free distribution of cigarettes or smokeless tobacco products. Exceptions are made for an adult-only retail facility, with distribution of no more than one free sample per day to an individual adult. Violation is subject to a civil penalty of not more than $5,000 plus costs of investigation and litigation including attorney’s fees.

MASS. GEN. LAWS ch. 93A §§ 2 & 4 & CODE of MASS. REGS. tit. 940, § 21.04 (2000).

A separate, identical regulation to the one above applies to cigars and little cigars. Violation is subject to a civil penalty of not more than $5,000 plus costs of investigation and litigation including attorney’s fees.

MASS. GEN. LAWS ch. 93A §§ 2 & 4 & CODE of MASS. REGS. tit. 940, § 22.06 (2000).

Single Cigarettes

No person shall sell, offer for sale or have in possession with intent to sell single unpackaged cigarettes. Whoever violates the provision of this section shall be punished by a fine of not less than $200 or more than $500.

MASS. GEN. LAWS ch. 94, § 307a (1996).

It shall be an unfair or deceptive act or practice for any manufacturer, distributor or retailer to break or otherwise open any cigarette or smokeless tobacco product package to sell or distribute any number of unpackaged or repackaged cigarettes or any quantity of smokeless tobacco that is smaller than the smallest package distributed by the manufacturer for individual consumer use. Violation is subject to a civil penalty of not more than $5,000 plus costs of investigation and litigation, including attorney’s fees.

MASS. GEN. LAWS ch. 93A §§ 2 & 4 & CODE of MASS. REGS. tit. 940, § 21.04 (2000).

A separate, identical regulation to the one above applies to cigars and little cigars. Violation is subject to a civil penalty of not more than $5,000 plus costs of investigation and litigation, including attorney’s fees.

MASS. GEN. LAWS ch. 93A §§ 2 & 4 & CODE of MASS. REGS. tit. 940, § 22.06 (2000).

Restrictions on Sale of Tobacco Products in Vending Machines

Placement

It shall be an unfair or deceptive act or practice for any person who sells or distributes cigarettes or smokeless tobacco products through a retail outlet located within Massachusetts to engage in the selling of cigarettes or smokeless tobacco products in any manner other than in a direct, face-to-face exchange without the assistance of any vending machines or any other electronic or mechanical device, except for vending machines that are located in facilities licensed to serve alcoholic beverages for consumption on the premises, if the vending machine is equipped with a lock-out 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; 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 lock-out device; and is posted with a sign stating that minors are not permitted to purchase tobacco and notifying customers of the lock-out device and identifying the outlet employee(s) to contact to purchase tobacco from the machine.

MASS. GEN. LAWS ch. 93A § 2 & CODE of MASS. REGS. tit. 940, § 21.04 (2000).

A separate, identical regulation to the one above applies to cigars and little cigars. MASS. GEN. LAWS ch. 93A § 2 & CODE of MASS. REGS. tit. 940, § 22.06 (2000).

Penalty

Violation is subject to a civil penalty of not more than $5,000 plus costs of investigation and litigation including attorney’s fees.

MASS. GEN. LAWS ch. 93A § 4 (2000).

Sign Posting

Each vending machine shall have attached to the front of it a notice reading “PERSONS UNDER 18 ARE PROHIBITED FROM USING THIS MACHINE.” Any person owning or operating a vending machine that fails to display such a notice shall be punished by a fine of up to $50.

MASS. GEN. LAWS ch. 64C § 10 (1976).

Licensing Requirements

Requirements

Manufacturers, retailers, wholesalers, and vending machine operators must obtain a license to sell tobacco products. Every machine operated or maintained for the purpose of vending cigarettes shall be deemed to constitute a place of retail business, and no person shall maintain or cause to be operated such a machine without procuring a retailer’s license. Licenses for manufacturers, wholesalers and vending machine operators expire every year; retailers each even year.

MASS. GEN. LAWS ch. 62C § 67 (1986) & ch. 64C § 2 (1976).

Fee

The fees for licenses and each renewal shall be determined annually by the Commissioner of Administration, except that for wholesalers, manufacturers or vending machine operators who maintain more than one place of business the fee for each additional place of business shall be one-half of the above determined fee.

MASS. GEN. LAWS ch. 62C § 67 (1986).

Advertising and Promotion

Note: The U.S. Supreme Court held unanimously that outdoor tobacco advertising restrictions enacted by Massachusetts in 1999 violate First Amendment speech rights, and 5-4 that Massachusetts cannot impose broad regulations on cigarette advertisements without violating federal law. Struck down regulations can be found at Code of Massachusetts Regulations title 940, sections 21.04(5&6) & 22.06 (5&6).

Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001).

Product Disclosure

Any manufacturer of cigarettes, snuff, or chewing tobacco sold in the Commonwealth shall provide the Department of Public Health, for each brand of such product sold, the identity of any added constituent other than tobacco, water or reconstituted tobacco sheet made wholly from tobacco, to be listed in descending order according to weight, measure or numerical count; and the nicotine yield ratings, which shall accurately predict nicotine intake for average consumers, based on standards to be established by the department. The department shall determine the public availability of this information if there is a reasonable scientific basis for concluding that the availability of such information could reduce risks to public health. However, before any public disclosure of such information the department shall request the advice of the Attorney General whether such disclosure would constitute an unconstitutional taking of property, and shall not disclose such information unless and until the attorney general advises that such disclosure would not constitute an unconstitutional taking. A regulation was promulgated providing more detail on the implementation of this law.

MASS. GEN. LAWS ch. 94 § 307B; & CODE of MASS REGS. tit. 105 § 660 (1996).

Tobacco Divestment

New public pension funds in stocks, securities, or other obligations of any company which derives more than 15 percent of its revenues from the sale of tobacco products are prohibited. Divestment of existing investments is required within three years of enactment. Annual reporting of tobacco investments, until divestment is completed, is required.

MASS. GEN. LAWS ch. 32 § 23 (1997).

Tobacco Liability

Industry Protection

Note: No appeal bond is required to appeal monetary judgments in lawsuits in Massachusetts.

Tobacco Settlement

Tobacco Control Appropriations

Massachusetts allocated $12,225,000 for tobacco prevention and cessation programs in FY2009 (July 1, 2008 to June 30, 2009) from the state general fund. $12,750,000 was allocated in FY2008.

FY2009 Annual Budget (H.B. 4900) enacted and effective 7/13/08.

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