A communication transmitted from Louis A. DePasquale, City Manager, relative to Awaiting Report Item Number 19-49, regarding a report on restrictions on signage specific to retail establishments that sell e-cigarettes and other vaping devices

NOVIS Nancy E. Glowa Assistant City Solicitors Paul S. Kawai City Solicitor ANTIOVIS INSTIIVIS Keplin K. U. Allwaters Arthur J. Goldberg Sean M. McKendry DECORA Deputy City Solicitor Megan B. Bayer Brian A. Schwartz Samuel A. Aylesworth Katherine Sarmini Hoffman DONATA First Assistant City Solicitor Public Records Access Officer Seah Levy CITY OF CAMBRIDGE Office of the City Solicitor 795 Massachusetts Avenue Cambridge, Massachusetts 02139 October 26, 2020 Louis A. DePasquale City Manager City of Cambridge City Hall, 795 Massachusetts Avenue Cambridge, Massachusetts 02139 Re: Response to Awaiting Report No. AR 19-49 (Order No. O-15 of April 8, 2019) Requesting a Report on Recommending Restrictions on Signage Specific to Retail Establishments that Sell E-Cigarettes and Other Vaping Devices Dear Mr. DePasquale: Introduction I. This legal opinion was requested by Claude Alix Jacob, Chief Public Health Officer for the City of Cambridge (the "City"), in connection with preparing a response to Awaiting Report No. AR 19-49 (Order No. O-15 of April 8, 2019) which states that "the City Manager is requested to work with the Public Health Alliance, Economic Development Division of Community Development Department and the Community Development Department to recommend restrictions on signage specific to retail establishments that sell e-cigarettes and other vaping devices." In connection with preparing a response to the above-referenced awaiting report, the Public Health Department asked for "guidance from the Law Department on whether the City has or may create the authority to limit commercial signage at an establishment that sells JUL or other vape supplies." Various recent amendments to state and federal tobacco laws have diminished the need for local regulation of e-cigarettes. Notwithstanding the recently enacted amendments to state and federal tobacco laws discussed in detail below, because it is legally permissible for the City to enact laws to regulate the time, place, and manner of tobacco advertisements in the City, I am of the opinion that the City may enact such amendments to the City's Municipal Code, as set forth in the attached proposed amendment. Telephone [phone removed] Facsimile [phone removed] TTY/TTD [phone removed]

I. Legal Analysis A. Amendments to State and Federal Tobacco Laws Effective November 27, 2019, the Legislature of the Commonwealth of Massachusetts amended G. L. c. 270, § 28 ("Section 28") to prohibit the sale of flavored tobacco products in the Commonwealth, including online sales, except for sale in smoking bars for on-site consumption. Section 28 also prohibits retailers or manufacturers from marketing or advertising proposed sales or distribution of flavored tobacco products that are in violation of G. L. c. 270, 8 28(b), which provides that "No person, retailer or manufacturer shall sell, distribute, cause to be sold or distributed, offer for sale any flavored tobacco product or tobacco product flavor enhancer in any retail establishment, online or through any other means to any consumer in the Commonwealth; provided, however, that this subsection shall not apply to the sale or distribution by a smoking bar, as defined in section 22, of flavored tobacco products or tobacco product flavor enhancers for on-site consumption. No person, retailer or manufacturer shall market or advertise a proposed sale or distribution that is prohibited herein." The definition of "tobacco product" in Section 28 includes electronic cigarettes, electronic cigars, electronic pipes, electronic nicotine delivery systems or any similar products that rely on vaporization or aerosolization regardless of nicotine content in the product...." Therefore, as a matter of law, advertisements of flavored tobacco products, including e-cigarettes, cannot law fully target retail sales to occur in places other than smoking bars for on-site consumption in this Commonwealth. Furthermore, under G. L. c. 270, § 6(b), "no person shall sell or provide a tobacco product to a person who is under 21 years of age." In addition, under 21 USC § 387(t)(d) (as amended on December 20, 2019), the legal age to purchase tobacco throughout the United States is now 21 years old, and therefore, under both state and federal law, sales at smoking bars are prohibited unless the customer is at least 21 years of age. Furthermore, the Commonwealth's Public Health Council has recently amended 105 CMR 665—Minimum Standards for Retail Sale of Tobacco and Electronic Nicotine Delivery Systems, to further restrict advertising of tobacco products. See 105 CMR 665 as amended. Specifically, 105 CMR 665.017 has been amended to, among other matters, prohibit marketing or advertising of proposed sale or distribution of tobacco products prohibited for sale or distribution within the retail establishment, and prohibit use or display of tobacco product advertisements that depict celebrities, mascots, sponsorships, cartoons, or any other similar endorsements. 105 CMR 665.017 (as amended). B. Exception in Federal Law Permitting Local Advertising Regulations Under 15 USC § 1334(b) "No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter." However, under 15 USC § 1334(c) ("Section 1334(c)"), ". ... a State or locality may enact statutes or promulgate regulations, based on smoking and health ... imposing specific bans or restrictions on the time, place, and manner, but not content, of the advertising or promotion of any Page 2 of 3

cigarettes." Therefore, under Section 1334(c), it is legally permissible for the City to enact an ordinance regulating the time, place, and manner of advertising or promotion of cigarettes, but not the content of cigarette advertisements in the City. Furthermore, under 21 USC § 387p(a)(2)(B), a political subdivision of a state (i.e., a city or town), may enact, adopt, promulgate and enforce laws, rules, regulations or other measures with respect to the advertising, promotion, or use of tobacco products by individuals of any age, that are in addition to, or more stringent than the requirements set forth in Chapter 9 of Title 21 (the "Federal Food, Drug, and Cosmetic Act"). C. Proposed Amendment to the Municipal Code to Address Tobacco Product Advertising Chapter 8.28 of the Municipal Code (the "Tobacco Control Ordinance"), Chapter 12.08 of the Municipal Code (the "Advertising Signs and Displays Ordinance"), and Article 7, Section 7.10 of the Cambridge Zoning Ordinance do not contain any restrictions that target tobacco product advertising in the City. Therefore, given the above legal authority, I am of the opinion that an amendment to the Tobacco Control Ordinance for the purpose of restricting tobacco product advertising, including e-cigarette advertising, in the City would be permissible. I have attached a proposed amendment to the Municipal Code for your review. Ill. Conclusion The City Council may adopt an ordinance regulating the time, place, and manner of tobacco advertising, including e-cigarette advertising, in the City. A document containing proposed amendments to the City's Tobacco Control Ordinance, specifically, amendments to Chapter 8.28, Sections 8.28.030 and 8.28.040, is attached for your review and consideration. Very truly yours, Nancy E. Glowa City Solicitor Enclosure: Proposed Amendments to Chapter 8.28, Sections 8.28.030 and 8.28.040 of the Municipal Code Page 3 of 3