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Brookline’s tobacco-free generation law facing challenge in MA’s highest court

A Sunoco gas station in Brookline displays a sign about Brookline's tobacco-free generation law. Photo by Cici (Yongshi) Yu.
October 26, 2023  Updated November 1, 2023 at 9:23 a.m.

A legal challenge filed by local convenience store and gas station owners over Brookline’s landmark Tobacco Free Generation law, which prohibits the sale of tobacco products to anyone born after January 1, 2000, is headed to the highest court in Massachusetts next month.

Oral arguments before the Supreme Judicial Court are scheduled to start Nov. 6. At issue is whether the law illegally denies adults rights by age or whether it serves a legal public purpose.

Brookline’s Town Meeting approved the first-in-the-nation policy in Nov. 2020, and it went into effect in Sept. 2021 after being okayed by the state Attorney General’s office.

It’s stricter than Massachusetts state law, the 2018 tobacco minimum age law, which raised the minimum age for the purchase of tobacco products from18 to 21.

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Kate Silbaugh, a Town Meeting member who co-sponsored Brookline’s groundbreaking legislation called the measure a “tobacco endgame strategy.”

“Instead of just ripping the band-aid and prohibiting tobacco, it takes the approach of distinguishing between people who already used tobacco who need to be able to access it and those who haven’t yet started using tobacco,” she said.

Brookline has been a leader in tobacco regulation for decades, Silbaugh said. It was the first community in the state to enact smoking bans in bars and restaurants in 1994 and later to ban the sale of all flavored tobacco and vapor products in 2019. The ultimate goal of the new law is to gradually phase out the sale of tobacco products in town.

Retailers say rule hurts their business

A group of convenience store and gas station owners filed a complaint in Sept. 2021 seeking to overturn the birth-date restriction.

Elias Audy, one of the plaintiffs, owns and operates the Village Mobil on Boylston Street. He has seen a 5% to 8% reduction in sales of gas, cigarettes, and other store items in 2023, he said, and expects to see a continued gradual reduction of sales in the future.

“The sale of cigarettes is a good portion of my business, and the reason is because we are in a competitive business. If I don’t sell it, someone else will sell it,” Audy said in an interview. “When I am denied the right to sell cigarettes to those customers who want to have a one-stop shop, I am more likely to lose them because it’s a matter of convenience.”

​​Fahd “Sunny” Iqbal, another plaintiff in the lawsuit, owns a Sunoco gas station and a convenience store near the Brookline-Boston border. Since COVID-19, Iqbal said he saw a 30% drop in overall store revenue and lost many customers born after 2000, previously a sizable portion of his business composed largely of students who live nearby.

Fahd “Sunny” Iqbal owns a Sunoco gas station in Brookline. Photo by Cici (Yongshi) Yu

Iqbal worries retailers like him may not survive long enough to see timely alternative solutions. “We’ll try our best to move forward and try new things out,” he said. “It’s going to be a scary and very confusing kind of experience.”

The legal battle

In May, the retailers appealed the Norfolk County Superior Court’s dismissal of their case to the Supreme Judicial Court. They argued that the birth-date restriction conflicts with the state’s minimum tobacco purchase age of 21, and violates the Massachusetts Constitution by arbitrarily dividing adults by age and denying rights to some adults.

“The State Tobacco Act expressly preempts inconsistent local laws relating to the minimum sales age to purchase tobacco products, but it does not ‘otherwise’ preempt local laws that limit or prohibit the purchase of tobacco products,” they wrote. “In other words, local communities can further regulate and restrict the purchase and sale of tobacco products, but those restrictions cannot be age-based.”

Mark Gottlieb, a public health attorney who represents Brookline, said Brookline’s bylaw is a phased-in tobacco sales ban rather than age-based restriction. He explained that when retailers challenge a law, the government only needs to show the law is rationally related to a legitimate interest like public health.

“The government interest as stated in the law itself is to protect young people and the health of the people of Brookline,” Gottlieb said. “This is a way to do it by reducing and eventually prohibiting the sale of all tobacco products in the town of Brookline.”

Daniel Farbman, an assistant professor at Boston College Law School and expert on local government law, said he thinks this law is constitutional.

“It always happens that when people want to say something is a bad idea, they would like to also say that it is unconstitutional because saying something is unconstitutional is a powerful way of condemning it,” Farbman said.

The lawyers for the retailers declined to comment.

An amicus letter to the Supreme Judicial Court from Nicholas Ogden, the senior tobacco enforcement counsel at the Attorney General’s office, stated that Brookline bylaw didn’t conflict with state law or the constitution. He wrote that the state law’s age limit was meant to protect youth and did not expressly preclude localities from imposing additional restrictions like banning the sale of tobacco products.

The bylaw is easy for retailers to enforce because there’s only one date that is relevant when they check the ID, Gottlieb said in an interview.

“It’s a much better way for the retailers than the alternative, which would be a complete prohibition on the sale of tobacco products because it gives them a very gradual phasing out of the sales and opportunities to find other means to replace the profits from those sales with the sale of other goods,” Gottlieb said.

Few fines, stores turn away customers

Since the Brookline law was implemented, four stores have been charged with violating birth-date restriction, resulting in $300 fines for each violation, according to Sigalle Reiss, Brookline’s director of public health and human services.

“If we can prevent people from starting to use tobacco products, then we prevent lifetime smokers,” Reiss said. “We know retail access is an effective way to reduce the use of the product.”

Under the new law, Iqbal said his store rejects an average of five to eight potential customers each day who were born after 2000.

“What we have experienced is we piss them off more when we say that you can’t buy for the rest of your life no matter how old you are,” Iqbal said. “So maybe it gave them anger to go elsewhere and buy more and be more aggressive on this habit.”

However, Anthony Ishak, who sponsored the Town Meeting resolution along with Silbaugh, said that the inconvenience of buying tobacco products would likely prompt more people to quit smoking, particularly those who shouldn’t be buying cigarettes.

“We were hoping by being next door to Boston, that if this passes and makes its way through the system, it was going to apply a little bit of pressure to Boston to discuss it too,” said Ishak, a pharmacist by profession.

“Patchwork of laws”

Retailers are concerned about the possibility that Brookline’s tobacco birthdate restriction could spread to other towns.

“Many of our members have stores in different towns and they have more than one store,” said Peter Brennan, the executive director of the New England Convenience Store and Energy Marketers Association. “So then you have to again adapt to a patchwork of laws and regulations based on where certain products can be sold.”

Retailers like Audy viewed the law as discriminatory because it singles out Brookline businesses while not applying statewide.

“We’re not an island,” Audy said. If the Tobacco Free Generation law became statewide law, he said he would be the first in line to support and comply with the policy.

Gottlieb said Somerville, Stoneham, Wakefield and Melrose have expressed interest or scheduled meetings with the Board of Health to discuss similar tobacco control measures for their community. Melrose just announced days ago that it plans to put forward a nicotine-free generation bylaw.

If the Brookline bylaw is overturned, Brookline public health director Reiss said she will pursue other tobacco control strategies for youth.

“My long-term plan is also to use the regulatory power of the boards of health to look at tobacco, and there are some great models out there,” Reiss said. “Having more consistent regulations across municipalities also would benefit everybody.”