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Brookline banned anyone born this century from buying tobacco in town. The rule is ‘clever,’ but is it legal?

Brookline in 2020 adopted a bylaw banning the sale of tobacco or e-cigarettes to anyone born on or after Jan. 1, 2000.Tony Dejak/Associated Press

During the depths of the pandemic, Brookline adopted a public health measure unlike any in the country. Massachusetts’ highest court could now determine whether it can stay.

Currently, no one born in the 21st century is allowed to buy tobacco in the Boston suburb of 60,000 people after Town Meeting voters adopted a first-in-the-nation bylaw in 2020. The rule went into effect about a year later, gradually prohibiting tobacco or e-cigarette sales to anyone born on or after Jan. 1, 2000.

That means that at some point far into the future, literally no one would be allowed to buy tobacco in Brookline, regardless of his or her age. Currently, the legal age to purchase tobacco statewide is 21.

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The Brookline rule has been hailed as a novel effort to curb youth tobacco use by going far beyond setting a minimum age, effectively banning future generations from ever purchasing tobacco. New Zealand last year adopted a similar policy, but Brookline’s bylaw remains the only one of its kind in the United States, though it’s something other towns hope to emulate.

“We need to do more than what we’ve been doing,” said Maureen Buzby, the tobacco inspection coordinator for several Massachusetts communities, including Melrose, Stoneham, and Wakefield, where officials are weighing restrictions similar to Brookline’s. “We’ve done a lot of policy, a lot of regulation, a lot of state law. Frankly, they’ve worked as Band-Aids.”

But now, a ruling by the state’s Supreme Judicial Court could undo the attempt at a wider salve. The high court’s justices this month heard a challenge from a group of Brookline businesses, whose attorneys argue that Brookline’s bylaw is unconstitutional and conflicts with the 2018 state law that set the legal age at 21.

A ban, even implemented gradually, could have wide ramifications for convenience stores, where tobacco products account for more than one-quarter of merchandise sales nationally, according to a Massachusetts trade group representing local retailers. The lawsuit has also drawn the support of some of the tobacco’s industry’s biggest players hoping to stop the policy before it gains steam.

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Backing Brookline’s bylaw is the state of Massachusetts, which argued in a brief that the town is addressing “a legitimate health concern.” Governor Maura Healey approved Brookline’s rule when she was attorney general.

A slew of other policymakers, from California lawmakers to those in Hawaii, have proposed their own bans. While the legal nuances could shift from state to state, the Massachusetts SJC ruling could provide an important barometer, including clearing others in Massachusetts to pursue their own restrictions or sending them back to the drawing board.

“I would think [tobacco companies] may consider it a bit of a long shot, but a potentially mortal threat to their industry,” said Mark Gottlieb, executive director of the Public Health Advocacy Institute at Northeastern University’s School of Law, which is representing Brookline in the lawsuit.

“What the SJC does in this case may not have any impact on whether a policy may withstand a legal challenge in other states,” he added. “But it certainly would show it’s possible, given the right legal environment, to implement a policy that is truly an end-game policy for tobacco sales.”

Town hall on Washington Street in Brookline. Craig F. Walker/Globe Staff

It’s unclear when the SJC will issue its ruling. Technically, the high court will decide whether to uphold a lower court’s decision to dismiss the lawsuit, known as Six Brothers v. Brookline, where store owners argued Brookline’s tobacco ban undercuts the 2018 law and the intent of the Legislature to set a minimum age.

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At the time, state policymakers noted the minimum age law would replace what had become a “confusing and bewildering patchwork” of rules across towns and cities, Patrick Tinsley, an attorney representing the Brookline retailers, said during the SJC hearing.

Moreover, opponents of Brookline’s rule contend it violates equal protection guarantees in the state constitution. American Snuff Co. — a subsidiary of the tobacco giant American Reynolds — argued in a court brief that allowing someone born at 11:59 p.m. on Dec. 31, 1999 to buy cigarettes but permanently barring someone born one second later is “discriminatory treatment [that] cannot pass constitutional muster.”

A company spokesperson declined to comment further.

“At what point do adults have the freedom to make their own choices about the products they consume?” said Peter Brennan, executive director of the New England Convenience Store and Energy Marketers Association, a trade organization that represents 7,000 retailers.

The Brookline rule, he said, is a “sneaky, end-around way” toward an outright ban. “It sets a moving goalpost.”

At a hearing this month, justices on the SJC considered the law’s weighty ramifications. Justice Scott L. Kafker said, in effect, the bylaw would eventually raise the minimum age “to the point where it renders everybody too young to buy.”

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“Very clever,” he mused. “I just don’t know if that’s legal.”

Attorneys for Brookline argue the bylaw is “not a minimum,” but a ban, which is legal under the 2018 state law allowing towns or cities to pursue their own rule that “limits or prohibits the purchase of tobacco products.”

Katharine Silbaugh, a Boston University law professor and one of the leading petitioners of Brookline’s bylaw, argued that nicotine and tobacco shouldn’t be regulated like alcohol or cannabis, which “whether we’re right or not, we believe at some age, they are safe enough to use.”

“It doesn’t make sense to have an age restriction that seems to indicate that you have become old enough to smoke,” she said. “You’re never old enough to smoke.”

Town data indicate that tobacco use among high schoolers has steadily plunged: In 2013, for example, 26 percent of high schoolers said they used tobacco at some point.

In a 2023 survey, just 3 percent of Brookline high schoolers said they had used tobacco in the previous 30 days, while 9 percent said they had vaped; 19 percent said they vaped at some point in their lives. Still, health experts caution: It’s hard to draw a direct connection to the town’s new bylaw.

“Well never be able to point to a direct link [to the bylaw],” said Sigalle Reiss, Brookline’s public health director. But, she said, the policy is both an attempt to reduce exposure and “institute change across a whole community.”

“We’re not naïve. We know Brookline is not an island,” she said. “But we do feel like one community has to take that first step.”

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Health officials in Melrose, Stoneham, and Wakefield — three communities clustered north of Boston — have held public hearings on their proposed regulation, which would ban the sale of tobacco or e-cigarette products to anyone born on or after Jan. 1, 2004. But they’ve tabled any votes until after the SJC ruling, said Anthony Chui, the health director for all three communities.

Should they, and perhaps others, adopt similar rules, proponents say that could eventually build momentum toward the adoption of a statewide law.

But it often takes years for Beacon Hill to join such a groundswell. When the Legislature voted in 2018 to increase the legal age to buy tobacco from 18 to 21, half the state’s towns and cities, Boston included, had already done so, sometimes years earlier.


Matt Stout can be reached at matt.stout@globe.com. Follow him @mattpstout.