The Supreme Judicial Court has confirmed that local boards of health can administratively enforce violations of 105 CMR 665, the Department of Public Health’s regulations for the sale of tobacco and electronic nicotine delivery systems.
In Cumberland Farms, Inc. v. Board of Health of Braintree, SJC-13613 (Jan. 15, 2025), Cumberland Farms argued that the Braintree Board of Health exceeded its authority under the regulations by fining the convenience store $1,000 for offering for sale a flavored tobacco product. It claimed that the DPH regulations only allow Boards of Health to impose a penalty by filing a criminal complaint in Court, rather than by issuing an administrative fine, as the Board had done.
In reaching its holding, the Court interpreted the plain language of the DPH regulations as allowing alternative methods of enforcement, either through a criminal complaint or through issuance of administrative fines following the procedures of 105 CMR 665.055. The Court found that the “or otherwise” language in the regulations authorizing local enforcement meant that DPH both created a new method of local administrative enforcement, and alternatively allowed boards to enforce using the prior existing method of criminal enforcement:
Unless otherwise expressly provided in any general law to the contrary, each board of health may enforce 105 CMR 665.000, or otherwise at law or in equity in the same manner that local rules and regulations are enforced.
The Court also found that the Board of Health was not required to adopt local regulations to employ the administrative enforcement option, holding that the adoption of local tobacco sale regulations is optional, since the DPH regulations include an extensive process for enforcement proceedings. The imposition of a $1,000 fine for a first violation is expressly required upon a finding of a violation per 105 CMR 665.045(A)(2).
In contrast, the Board’s imposition of a five-day suspension was held by the trial court to be beyond the authority of the Board under the statute and regulations and therefore was vacated. The Town did not appeal this holding.
A separate issue in the case was whether the Board of Health erred in finding Cumberland Farms store had actually “offered for sale” the flavored tobacco product for which it was fined. The flavored cigars had been displayed behind the counter in an open box. Cumberland Farms claimed that the product was mistakenly delivered to the store, was never intended to be sold, and could not have been rung up by the point-of-sale system in the event a customer attempted to buy it. Siding with the Board of Health, the Court adopted an interpretation of “offered for sale” that does not turn on whether a customer can actually complete the purchase. The manner of display and placement of the product behind the cash register, alongside other tobacco products offered for sale, supported the reasonable conclusion that the banned product was offered for sale, as such term is understood under the statute.
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