Current through Register 1531, September 27, 2024
(1)
Retail Sales Practices. Except as otherwise provided
in 940 CMR 21.04(4), it shall be an unfair or deceptive act or practice for any
manufacturer, distributor or retailer to engage in any of the following
practices:
(a) sampling, promotional
give-aways, or any other free distribution of cigarettes, smokeless tobacco
products, or electronic smoking devices;
(b) breaking or otherwise opening any
cigarette, smokeless tobacco product, or electronic smoking device's package to
sell or distribute any number of unpackaged or repackaged cigarettes or any
quantity of smokeless tobacco or electronic smoking devices that is smaller
than the smallest package distributed by the manufacturer for individual
consumer use;
(c) distributing
cigarettes, smokeless tobacco products, or electronic smoking devices through
the mail, including redemption of coupons, credits and proofs-of-purchase,
except as otherwise provided in 940 CMR 21.00; or
(d) selling or distributing cigarettes,
smokeless tobacco products, or electronic smoking devices where apparel or
merchandise (other than cigarettes, smokeless tobacco, or electronic smoking
devices) bears a brand name and is offered in consideration of the purchase of
cigarettes, tobacco products, and electronic smoking devices.
(2)
Retail Outlet
Sales Practices. Except as otherwise provided in 940 CMR 21.04(4),
it shall be an unfair or deceptive act or practice for any person who sells or
distributes cigarettes, smokeless tobacco products, or electronic smoking
devices through a retail outlet located within Massachusetts to engage in any
of the following retail outlet sales practices:
(a) Selling cigarettes, smokeless tobacco
products, or electronic smoking devices in any manner other than in a direct,
face-to-face exchange without the assistance of any vending machines or any
other electronic or mechanical device, except as otherwise provided in 940 CMR
21.00;
(b) Failing to verify by
means of valid government-issued photographic identification that each person
purchasing cigarettes, smokeless tobacco, or electronic smoking devices is the
Minimum Legal Sales Age or older. No such verification is required for any
person who appears 27 years of age or older; or
(c) Using self-service displays of
cigarettes, smokeless tobacco products, or electronic smoking devices;
or
(d) Failing to place cigarettes,
smokeless tobacco products, or electronic smoking devices out of the reach of
all consumers, and in a location accessible only to retail outlet
personnel.
(3)
Retail Outlet Prevention Measures. It shall be an
unfair or deceptive act or practice for any person who sells or distributes
cigarettes, smokeless tobacco products, or electronic smoking devices through a
retail outlet located within Massachusetts to sell cigarettes, smokeless
tobacco products, or electronic smoking devices to consumers without
implementing all prevention measures reasonably necessary to prevent the sale
of cigarettes or smokeless tobacco products to consumers younger than the
Minimum Legal Sales Age. A person is presumed to have complied with this
provision if such person has implemented the following prevention measures:
(a) For any retailer who employs six or more
persons, undertaking an in-house secret shopper program at all retail outlets
as a routine part of its business, and implementing and operating the
prevention measure set forth in 940 CMR 21.04(3)(b). A retailer who receives
during any calendar year official written notification from a state or local
governmental authority of passing a tobacco compliance check is presumed to
comply with this prevention measure for the next calendar year as to each
retail sales outlet referenced in such notification as passing the compliance
check; or
(b) For any retailer who
employs five or fewer persons, implementing and operating a training program
for all employees who handle exchanges of cigarettes, smokeless tobacco
products, or electronic smoking devices regarding compliance with laws and/or
local ordinances prohibiting the sale of such products to minors. A model
training program for tobacco retailers is available to all retailers at the
Office of the Attorney General.
(4)
Exceptions to Prohibited
Retail Sales and Retail Sales Outlet Practices. The following
retail sales and retail sales outlet practices are not unfair or deceptive:
(a) Mail-order or internet sales that are
subject to verification that the purchaser is at least the Minimum Legal Sales
Age. Verification of age through the mail or internet shall consist of, at a
minimum:
1. verification that the purchaser is
of the Minimum Legal Sales Age through a commercially available database, or
aggregate of databases, that is regularly used by government and business for
the purpose of age and identity verification; and
2. use of a method of mailing, shipping, or
delivery that requires signature of a person who is of the Minimum Legal Sales
Age before the shipping package is released. Any information required to
complete the age verification process must be requested on a form separate from
that used to collect payment information, shall not include Personal
Information as defined by M.G.L. c. 93H, and shall not be used for any purposes
other than age verification. Mail order or internet sales are subject to the
sales practices described in 940 CMR 21.04(1)(a) and (b).
(b) Vending machines that are located in an
Adult-only Retail Facility licensed under M.G.L. c. 138, § 12, to serve
alcoholic beverages for consumption on the premises, if the vending machine:
1. is equipped with a lock-out device that
locks out sales from the vending machine unless the locking mechanism is
released by an outlet employee. The release mechanism must not allow continuous
operation of the vending machine and must be out of the reach of all consumers
and in a location accessible only to outlet personnel;
2. is located within the immediate vicinity
and exclusive control of outlet personnel such that all purchases are
observable by the outlet employee(s) controlling the lock-out device;
and
3. is posted with a sign
stating that those below the Minimum Legal Sales Age are not permitted to
purchase tobacco and notifying customers of the lock-out device and identifying
the outlet employee(s) to contact to purchase tobacco from the
machine.
(c)
Self-service displays that are located within an Adult-only Retail
Facility.
