The Massachusetts Supreme Judicial Court, in a unanimous decision, today gave the green light to the life-saving Nicotine-Free Generation (“NFG”) policy. The Brookline bylaw, which the Court upheld the Town of Brookline’s local law to prohibit sales of tobacco products to anyone born on or after January 1, 2000, is in conflict with the state statute that set the minimum sales age for tobacco products at 21.
The case is: Six Brothers, Inc. v. Town of Brookline (SJC 13434).
The Public Health Advocacy Institute (“PHAI”) represents the Town of Brookline in this matter, which was argued by its Chris Banthin on November 6, 2023. Also defending the Town was PHAI’s executive director, Mark Gottlieb, and its litigation director, Andrew Rainer along with associate town counsel, John Bucheit.
PHAI executive director, Mark Gottlieb, said, “the Court has confirmed that Massachusetts is, indeed, a laboratory for public health innovation. It is important that Brookline’s law applies not only to cigarettes, but to vaping, pouches, and whatever new products the tobacco industry rolls out to hook kids moving forward.”
The unanimous opinion authored by Justice Wendlandt found that:
Because the bylaw falls within the type of local law limiting or prohibiting the sale of tobacco products expressly permitted by the act, and because the bylaw is not otherwise inconsistent, contrary, or conflicting with the act’s minimum age standard, we conclude that it is not preempted. Further [we conclude] that the bylaw is rationally related to a legitimate government interest and does not violate the equal protection provisions of art. 1 of the Massachusetts Declaration of Rights . . .
The policy adopted by Brookline, known as the “Nicotine Free Generation” policy is meant to gradually eliminate all tobacco sales in the town. Brookline is the first place in the country and, in fact, the world, to implement such a policy.
The policy is crafted so that it should only apply to those who are not already nicotine-dependent, and its sales ban is phased-in slowly to minimize disruption to retailers and to tax revenue.
Today’s decision affirms a Superior Court’s 2022 decision granting the Town’s Motion to Dismiss the case brought by a group of local gas stations and convenience stores.
Several other Massachusetts communities’ boards of health have heard hearings on proposed regulations to implement Nicotine Free Generations policies in their towns.
PHAI’s president and Northeastern University Distinguished Professor of Law, Richard Daynard, has long argued for phasing out the sale of all tobacco products. Professor Daynard notes that, “for more than a decade I have thought that it was an especially promising approach to end the cycle of addiction and disease caused by tobacco products with the next generation. Parents don’t want their kids to get hooked on tobacco when they are 18, 21, or 25 and there is no good public health reason to concede those young people to the tobacco industry. Brookline took the first step and survived the inevitable industry challenge and now others can follow Brookline’s public health leadership.”
The Public Health Advocacy Institute is a non-profit organization based at Northeastern University School of Law.