Jon Berrick, Chris Bostic, Michael Chou, Richard Daynard, Lissy Friedman, Mark Gottlieb, Anthony Ishak, Tamu Green, Kate Silbaugh & D J Wilson

Why Brookline?

Brookline, Massachusetts is a relatively affluent and well-educated town within the greater Boston metropolitan area. It has repeatedly been at the forefront of anti-tobacco legislation, having been a municipal member of the state’s tobacco control program since the program’s inception in 1994 when it was the first town in Massachusetts to ban smoking in bars and restaurants. One reason for Brookline’s success might be that it allows for residents to propose new bylaws for voting on at a Town Meeting. Another reason is the solid anti-tobacco activism of the local Brookline High School students, keenly involved in several of the following measures:

• 2011 Prohibited the sale of harmful tobacco products by pharmacies and schools as inconsistent with their roles as advocates for health and education.
• 2012 Increased the age to buy cigarettes from 18 to 19, following the example of Belmont MA.
• 2014 Raised the buying age to 21 – and imposed a 400-foot no-smoking restriction around schools to avoid normalization of the behavior.
• 2018 Banned the sale of flavored tobacco products (including menthol cigarettes) by a decisive 174-20 margin. (Northeastern University’s Public Health Advocacy Institute, PHAI, helped local advocates with legal drafting. The Commonwealth of Massachusetts followed suit in 2019.)

Advocates in Brookline discussed ways to stay ahead of the tobacco industry’s evolving effort to target vulnerable populations. They considered an outright ban, a limit allowing only existing types of tobacco products and forbidding new entrants, and a birth-date restriction reflecting the Tobacco Free Generation (TFG) concept. The first two ideas were discarded given potential state or federal law conflicts or the imposition on local businesses of a drastic change, and attention focused on TFG as a compromise.

Why TFG?

Under TFG, sales to those born last century are unaffected. It is only this century’s generations that the measure seeks to avoid being trapped into addiction, morbidity and premature mortality (TFG principles apply, however, whether or not its demarcation date corresponds precisely with the changing of centuries). For Brookline, attention is focused on tobacco retailers rather than their customers. Over time, smokers and vapers born last century will become less of a role model for future adolescents. Thus, the initiative will increasingly de-normalize smoking (as smoke-free areas have). Its success is aided by the clear message (unlike that of the minimum-age laws encouraged by the tobacco industry) that there is no safe age for use of tobacco products. For more detailed analysis, see the University of Otago blog.

The Town Meeting

In 2020, two Brookline residents, Pharmacist Anthony Ishak and Law Professor Kate Silbaugh, spearheaded the effort to pass a bylaw to ban tobacco sales to anyone born after Jan 1, 2000. During the hearing process leading up to the Town Meeting on 19 November 2020, the cut-off birthdate was decided as 1/1/2000 (an administratively simple date) to minimize the impact on any existing purchasers in light of the addictiveness of nicotine, and instead focus only on preventing the initiation of tobacco use by youth maturing into young adulthood. One line of objection was that it might be a financial disadvantage for local businesses, particularly with the impacts of the ongoing COVID pandemic, and with the possibility of young adults taking their business to a neighbouring town. The usual libertarian arguments against public health measures were also advanced; however, the effect of the pandemic may have reduced their appeal. The Meeting passed Brookline’s TFG bylaw by a 139-78 vote.

Aftermath

Although the bylaw was approved by the Town Meeting, it required an approval by the Massachusetts Office of the Attorney General’s Municipal Law Unit before it could be implemented. One key concern about the legality of TFG in Massachusetts was that opponents of the policy would claim that the state’s 2018 tobacco minimum sales age law preempted the Brookline measure.

The 2018 state law raising the minimum sales age from 18 to 21 years stated that it, “shall preempt . . . any inconsistent, contrary or conflicting . . . local law related to the minimum sales age to purchase tobacco products.” Letters urging the Attorney General not to approve the Brookline bylaw were submitted by the Business Retail Association of Brookline and by the New England Convenience Store and Energy Marketers Association, while letters urging approval of the measure were submitted by Action on Smoking and Health and by PHAI.

Eight months after the Town passed the TFG law, on 19 July, 2021 the Attorney General approved it and rejected the preemption arguments raised by tobacco retailers. Crucially, the decision found that, “the preemptive effect of the statute is limited to local laws that would allow tobacco sales to those under the age of twenty-one.” Certainly, Brookline’s TFG bylaw would not allow for any such sales. Brookline began implementation on 1 September, 2021.

On 14 September, 2021, several Brookline tobacco retailers filed a lawsuit in Massachusetts Superior Court challenging the law on the basis that, (1) despite the approval by the state attorney general, it is preempted under state law, and (2) that it violated the Massachusetts Constitution’s guarantee of equal protection under the law by discriminating against anyone born on or after 1 January, 2000. It is expected that the lawsuit against the Town will be resolved in 12-18 months. The Town has sought to dismiss the complaint, and is now enforcing its first-in-the-nation TFG law.

Following a long history of anti-tobacco initiatives born in Brookline that led others to adopt similar measures, advocates hope the TFG bylaw will provide a pathway for other jurisdictions seeking to end the cycle of new users becoming addicted to tobacco. Boston does, after all, have a history of initiating revolutions.

Jon Berrick (Yale-NUS College), Chris Bostic (ASH), Michael Chou (Harvard Medical School), Richard Daynard (Northeastern University), Lissy Friedman (PHAI), Mark Gottlieb (PHAI), Anthony Ishak, Tamu Green (Equity and Wellness Institute), Kate Silbaugh (Boston University), D J Wilson (Massachusetts Municipal Association).

Authors have no interests to declare beyond those specified above.