Massachusetts High Court Upholds First Generational Ban

The highest court in Massachusetts ignored objections from vape shop owners and tobacco retailers and upheld the legality of a novel bylaw that bars cigarette sales to anyone born after January 1, 2000, in the town of Brookline. The restriction, the first of its kind in the United States, is designed to prevent future generations from using not only tobacco but also nicotine.

Retailers argued that the 2021 Brookline bylaw was pre-empted by a state law approved in 2018 that raised the minimum age for purchasing a tobacco product from 18 to 21, according to media reports. The retailers pointed out that the Brookline bylaw effectively means someone born after January 1, 2000, will not be able to purchase a nicotine product regardless of their age.

Over time, as the population ages, the bylaw will effectively ban the sale of tobacco products in the town.

In the Supreme Judicial Court’s unanimous opinion, written by Justice Dalila Wendlandt, the court acknowledged the Brookline bylaw is more restrictive than the state’s minimum age standard, but the justices had no issues with that. They said the bylaw “augments the state statute” by further limiting access to tobacco products to persons under the age of 21.

The court rejected claims by the tobacco retailers that the state law was designed to clarify what had become a muddled regulatory environment as municipality after municipality raised the minimum age for buying tobacco products.

“The retailers claim that the purpose of the Tobacco Act was ‘actually to benefit tobacco retailers . . . by eliminating the confusion that arises when the minimum age for purchasing tobacco varies from town to town and city to city across the Commonwealth,’” the opinion said. “To the contrary, the act reflects the legislative intent to protect young persons and other vulnerable populations from the deleterious health effects of tobacco product use.”

The case drew attention in Massachusetts and around the nation and the world and the outcome is likely to prompt more communities to follow Brookline’s lead, creating a patchwork quilt of regulation of tobacco products.