The state Tobacco Act, G.L. c. 270, § 6, sets the minimum age for the sale of tobacco products at 21. It expressly preempts an “inconsistent, contrary or conflicting” local regulation as to the minimum age for sale. Otherwise, local regulation can limit or ban the sale of tobacco products in the municipality.
The town of Brookline adopted a bylaw that banned sales of tobacco products to any person born in the year 2000 or later no matter their age. Over time, the effect of the bylaw will be to phase out sales of tobacco in the Town entirely. For example, someone born in 2000 cannot purchase tobacco products in Brookline today even though they are over the age of 21. In Six Brothers, Inc. d/b/a Brookline Sunoco v. Town of Brookline, sellers of tobacco products sought a declaration that the bylaw was preempted by the Tobacco Act. The Supreme Judicial Court disagreed and upheld the validity of the bylaw.
The Court declined to apply strict scrutiny to the bylaw because it neither impacted a fundamental right nor a suspect classification of people. The bylaw was “rationally related to the furtherance of a legitimate state interest” to protect public health, is presumed to be valid, and must constitute a “sharp conflict” between the state law and local regulation for the local regulation to be preempted. Rather than being in sharp conflict with the Tobacco Act’s minimum age, the bylaw was found to augment the Act by further limiting access to tobacco and reducing the economic incentives to sell tobacco in the town.
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