Massachusetts Town Sued Over Banning Tobacco Sales to Anyone Born After Jan. 1, 2000

Last year, residents of Brookline, Mass. approved a change to its town law that banned the sale of tobacco to anyone born after Jan. 1, 2000. Now, just as the new law is about to go into effect, the town is being sued over what is likely the first law in the U.S. to ban people born after a certain date from ever purchasing tobacco products within a city or town.

A group of owners of gas stations and convenience stores has sued the Town of Brookline arguing the new law preempts Massachusetts’ own law regarding the minimum age to purchase tobacco, but also arbitrarily creates two classes of people: one group—born before Jan. 1, 2000—who can purchase tobacco, and one group—born after that date—who will be barred from ever purchasing tobacco in Brookline. The plaintiffs claim that by creating two classes, the Town of Brookline has violated the state’s equal protection clause.

While Massachusetts was the sixth state to enact a statewide requirement that individuals must be at least 21-years-old to purchase tobacco, it was the battleground of the Tobacco 21 movement in the U.S. For years, Dr. Lester Hartman and Dr. Jonathan Winickoff, two Massachusetts-based pediatricians, campaigned around the state in various cities and towns to have local laws changed to increase the minimum age to purchase tobacco. By the time the state passed its own Tobacco 21 law, more than 100 municipalities in Massachusetts had changed their own laws regarding the minimum age to purchase tobacco. In December 2019, President Donald Trump signed a law increasing the federal minimum age to purchase tobacco products from 18-years-old to 21-years-old.

When the statewide law went into effect, there was a provision put in place that allowed those who had already reached the previous minimum statewide requirement—18-years-old—by the time the law went into effect to continue to purchase tobacco products even if they had not turned 21. In short, anyone that was 18-years-old by Dec. 30, 2018 could continue to purchase tobacco products, however, they were still subject to local laws.

The plaintiffs in Six Brothers, Inc., et al. v. Town of Brookline, et al. argue that Brookline’s new law preempts state law and that the Brookline Select Board was warned that its new law would likely not survive a legal challenge. Furthermore, the plaintiffs claim that the original proposal sought to ban tobacco sales to anyone born after Jan. 1, 1976, which would have banned some 40-year-olds from purchasing tobacco in Brookline.

Ultimately, various Brookline town boards declined to give their support for the law, but the age change passed through a vote by Brookline residents last November. Maura Healey, attorney general for Massachusetts, greenlit the new law in July—there were concerns that it would not get approval from the attorney general—and it is set to take effect on Sept. 27, 2021.