BOH Risks Lawsuit With Menthol Cig Ban

The Marion Board of Health wasn’t aware of just how controversial its decision was to classify menthol cigarettes as flavored tobacco and ban them from sale in Marion, but on August 23 Cheryl Sbarra, senior staff attorney for the Massachusetts Association of Health Boards, told the board members that the tobacco industry would likely sue the Town should they move to ban menthol cigarettes.

According to Sbarra, the Marion Board of Health’s action to amend regulations to classify menthol cigarettes as flavored tobacco products and ban them from sale would make Marion only the third municipality in the entire country to do so.

Although there is no legislation that prohibits the Board of Health from banning menthol cigarettes, she cautioned board members that Big Tobacco, once the smoke clears, will probably come after the Town with legal action.

“I just want you to be aware of that,” said Sbarra. “You might want your town counsel to be aware of that.”

Sbarra said the City of Chicago moved to ban menthol cigarettes as flavored tobacco products but, in order to circumvent significant legal issues, used language restricting the sale of menthol cigarettes only to stores outside of 500 feet of a school.

“They were sued,” said Sbarra. “I think they won in the lower court, but they’re having a problem enforcing it now because of how they defined ‘schools’.

Sbarra said the robust tobacco lobby has managed to keep menthol cigarettes from being classified as flavored tobacco, so far.

“I think that they will probably sue you because this (menthol cigarettes) is such a huge part of their business,” Sbarra stated.

Having said that, Sbarra indicated that if the Board of Health chooses to move forward with the ban, then various anti-tobacco entities in the United States might reach out to provide legal representation and assistance in the event of a lawsuit.

“I think there would be a lot of legal support for you if you did,” Sbarra said.

The board has two options, said Sbarra.

One is to go ahead with the reclassification of menthol cigarettes to be included in the town tobacco regulations and banned from sale in town and risk a lawsuit.

The second option would be to amend the regulation language to classify menthol tobacco as flavored tobacco products and restrict the sale of them to adult-only tobacco retail stores, of which there are none in Marion.

“It would still be very controversial because it’s menthol,” said Sbarra. She recommended that the board follow the language in the City of Providence’s tobacco ordinance, which restricts menthol cigarette sale to adult-only retail stores, because it has been upheld in both the First and Second Circuit Courts. The tobacco industry lost both times and did not appeal to the Supreme Court.

“We can try,” said Board of Health Chairman Betsy Dunn. “If they sue us, then we’ll decide.”

Board of Health member Jason Reynolds, who first proposed banning menthol cigarettes as flavored tobacco products, agreed with Dunn.

“I say we hold the hearing, and we can always alter it afterward,” said Reynolds.

Reynolds looked over a list of other towns and cities in Massachusetts that have banned the sale of flavored tobacco products, but which did not classify menthol cigarettes as ‘flavored.’

“Wimps,” said Reynolds defiantly.

Sbarra also warned the board that it might need to hold the public hearing for the ban of menthol cigarettes at a larger venue because attendance for controversial public hearings such as these can attract a significant turnout from the public, as well as legal representatives of interested parties.

The board is looking at September 27 as a tentative public hearing date for the new menthol cigarette and flavored tobacco product regulation.

Also during the meeting, the board discussed its proposed synthetic marijuana sale ban regulation, which it hopes to pass after a public hearing on September 13, tentatively.

The board received feedback from Town Counsel Jon Whitten about naming the Marion Police Department in the regulation as the enforcing body of the new law without Town Meeting approving the motion, but Sbarra told the board otherwise.

Sbarra said that as long as the Board of Health uses language designating itself and the Marion Police Department as enforcing agents, the new regulation could be approved by the board with only a public hearing on the matter.

The next meeting of the Marion Board of Health is scheduled for September 13 at 4:30 pm at the Marion Town House.

By Jean Perry


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