Selected Excerpts from Summary Decision Shown Below — To read the entire Summary Decision CLICK ON THIS FILE — 19P0020-SD
On February 23, 2017, a Yarmouth Health Department agent (agent) conducted an inspection of Cumberland Farms Store 2268 in West Yarmouth (Store), and determined that the Store offered three flavored tobacco products for sale in violation of § G: Black & Mild “Jazz” cigars, White Owl “Green Sweet” cigars, and Garcia Y Vega Game “Red” Cigars. In so doing, the agent did not smell or open the packaging of the products, and instead relied on a document (hereinafter Guidance List) created and maintained by the Massachusetts Association of Health Boards (MAHB). The three products identified by the agent were on the MAHB’s Guidance List at the time of the inspection. Three witnesses testified in support of finding that the three products were flavored: Cheryl Sbarra, MAHB’s director of policy and law; Sarah McColgan, the tobacco control director of the Massachusetts Health Officers Association (MHOA);7 and Robert Collett, director of the Cape Code Regional Tobacco Control Program (CCRTCP).
Sbarra testified at the hearings that MAHB employees had found “over and over” that “Jazz” cigars “smelled like a special sauce” that is “a distinguishable taste or aroma other than tobacco or mint.” Sbarra’s sworn written statement also averred that she had personally smelled “Jazz” cigars and that “it was clear that the product contained a strong aroma other than tobacco or menthol.” McColgan also testified that she had purchased multiple packs of the offending tobacco products from one of Cumberland’s stores, opened and smelled each one, and reported that she perceived “a fruity type of smell” emanating from the “Jazz” cigars.
Conclusion. Because the Board considered extensive evidence and testimony in finding Cumberland in violation of § G of the Regulation, we conclude that its decisions were supported by substantial evidence and were not arbitrary and capricious. Accordingly, so much of the judgment as affirms the Board’s decision, after remand, imposing a monetary fine is reversed. In all other respects the judgement is affirmed.
Tobacco Control & Prevention
Since the release of the first Surgeon General’s report in 1964 warning of the health hazards of smoking, we have learned what works and what doesn’t in ending this tragic epidemic. Yet smoking remains the leading preventable cause of premature disease and death in the United States. In 2014, 50 years after the first Surgeon General’s report, the Surgeon General released a report entitled The Health Consequences of Smoking – 50 Years of Progress.
Major conclusions from the report include the following:
- The century-long epidemic of cigarette smoking has caused an enormous avoidable public health tragedy. Since the first Surgeon General’s report in 1964 more than 20 million premature deaths can be attributed to cigarette smoking.
- The tobacco epidemic was initiated and has been sustained by the aggressive strategies of the tobacco industry, which has deliberately misled the public on the risks of smoking cigarettes.
- Since the 1964 Surgeon General’s report, cigarette smoking has been causally linked to diseases of nearly all organs of the body, to diminished health status, and to harm to the fetus. Even 50 years after the first Surgeon General’s report, research continues to newly identify diseases caused by smoking, including such common diseases as diabetes mellitus, rheumatoid arthritis, and colorectal cancer.
- Exposure to secondhand tobacco smoke has been causally linked to cancer, respiratory, and cardiovascular diseases, and to adverse effects on the health of infants and children.
- The disease risks from smoking by women have risen sharply over the last 50 years and are now equal to those for men for lung cancer, chronic obstructive pulmonary disease, and cardiovascular diseases.
- In addition to causing multiple diseases, cigarette smoking has many adverse effects on the body, such as causing inflammation and impairing immune function.
- Although cigarette smoking has declined significantly since 1964, very large disparities in tobacco use remain across groups defined by race, ethnicity, educational level, and socioeconomic status and across regions of the country.
- Since the 1964 Surgeon General’s report, comprehensive tobacco control programs and policies have been proven effective for controlling tobacco use. Further gains can be made with the full, forceful, and sustained use of these measures.
- The burden of death and disease from tobacco use in the United States is overwhelmingly cause by cigarettes and other combusted tobacco products; rapid elimination of their use will dramatically reduce this burden.
- For 50 years the Surgeon General’s reports on smoking and health have provided a critical scientific foundation for public health action directed at reducing tobacco use and preventing tobacco-related disease and premature death.
 U.S. Department of Health and Human Services. The Health Consequences of Smoking-50 Years of Progress: A Report of the Surgeon General. Atlanta, GA: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, 2014.
Tobacco is the only consumer product that when used as directed kills. Massachusetts has taken the lead in changing social norms surrounding smoking. It is no longer “normal” to see patrons smoking in restaurants, bars, airports, movie theaters or offices in Massachusetts. The is largely due to a once well-funded comprehensive tobacco control program as described in the 2014 Surgeon General’s report. It is also due to science-based, effective policies addressing exposure to secondhand smoke and tobacco and nicotine sales and use.
The federal Family Smoking Prevention and Tobacco Control Act (FSPTCA), enacted in 2009, prohibited candy and fruit flavored cigarettes largely because these flavored products were marketed to youth and young adults, and younger smokers were more likely to have tried these products than older smokers. However, the Act did not address cheap sweet other tobacco products, like the fifty-cent grape flavored cigar. Both the Federal Drug Administration and the Surgeon General have stated that flavored tobacco products are considered to be “starter” products that help establish smoking habits that can lead to long term addiction.We are not talking about your grandfather’s cigars here. The products pushed by the industry are not hand rolled, non-inhaled cigars. These cheap, sweet products are manufactured like cigarettes, often look like cigarettes, and are inhaled like cigarettes. The only real difference is that they are much cheaper than cigarettes and come in single doses.
Restricting the sale of these cheap, flavored products to adult-only establishments is a promising policy being adopted by more and more municipalities in Massachusetts. Another strategy is to prohibit the single sale of these products and require them to be sold in package of 2 or more.
Reducing density strategies include prohibiting the sale of tobacco in healthcare institutions like pharmacies, capping the number of retail tobacco products and prohibiting new tobacco retailers in areas around school. Increasing the minimum legal sales age to 21 is another popular strategy in Massachusetts. It is based on the Institute of Medicine’s report published in 2015 which stated that increasing the minimum age of legal access to tobacco to 21 would reduce tobacco use among 12 to 17 year olds and improve health across the lifespan and save lives.Strategies addressing the troubling increase in the use of nicotine delivery products like electronic cigarettes and hookah are also being enacted by municipalities.
Sample templates for both tobacco use regulations and secondhand smoke regulations are included in the Resource section of this website.
 Food and Drug Administration. 2011. Fact Sheet: Flavored Tobacco Products, www.fda.gov/downloads/TobaccoProducts/ProtectingKidsfromTobacco/FlavoredTobacco/UCM183214.pdf;U.S. Department of Health and Human Services. 2012. Preventing tobacco Use Among Youth and Young Adults: A Report of the Surgeon General. Atlanta: U.S. National Center for Chronic Disease Prevention and Health Promotion, Office of Smoking and Health, p. 539. www.surgeongeneral.gov/library/reports/preenting-youth-tobacco-use/full-report.pdf.
 IOM (Institute of Medicine) 2015. Public Health Implications of Raising the Minimum age of Legal Access to tobacco Products. Washington DC: The National Academies Press, 2015.