Current through Register 1531, September 27, 2024
(1)
Retail Sales Practices. Except as otherwise provided
in 940 CMR 22.06(4), it shall be an unfair or deceptive act or practice for any
person who sells or distributes cigars or little cigars directly to consumers
within Massachusetts to engage in any of the following practices:
(a) sampling of cigars or little cigars or
promotional give-aways of cigars or little cigars;
(b) breaking or otherwise opening any little
cigar package to sell or distribute individual little cigars or a number of
unpackaged or repackaged little cigars;
(c) distribution of cigars or little cigars
through the mail, including redemption of coupons, credits and
proofs-of-purchase, except as otherwise provided in 940 CMR 22.00;
(d) sale or distribution of cigars or little
cigars if any apparel or other merchandise (other than cigars or little cigars)
which bears a brand name is offered in consideration of the purchase.
(2)
Retail Outlet
Sales Practices. Except as otherwise provided in 940 CMR 22.06(4),
it shall be an unfair or deceptive act or practice for any person who sells or
distributes cigars or little cigars through a retail outlet located within
Massachusetts to engage in any of the following retail outlet sales practices:
(a) Selling cigars or little cigars 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 22.00;
(b) Failing to verify by means of valid
government-issued photographic identification that each person purchasing
cigars or little cigars is 18 years of age or older. No such verification is
required for any person who appears 27 years of age or older.
(c) Using self-service displays of cigars or
little cigars;
(d) Failing to place
cigars and little cigars out of the reach of all consumers, and in a location
accessible only to outlet personnel;
(e) As to any retailer who sells hand rolled
cigars, or who displays for purchase manufactured cigars outside of their
original package, failing to display a sign containing one of the warning
statements required by
940 CMR
22.04 in a clear and conspicuous format, a
minimum of 50 square inches in size, and in a location readily visible to the
consumer.
(3)
Retail Outlet Prevention Measures. It shall be an
unfair or deceptive act or practice for any person who sells or distributes
cigars or little cigars through a retail outlet located within Massachusetts to
sell cigars or little cigars to consumers without implementing all prevention
measures reasonably necessary to prevent the sale of cigars or little cigars to
consumers younger than 18 years old. 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 22.06(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;
(b) For any retailer who
employs five or fewer persons, implementing and operating a training program
for all employees who handle exchanges of cigars or little cigars regarding
compliance with laws prohibiting the sale of tobacco 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 sales, excluding mail-order
redemption of coupons and distribution of free samples through the mail, that
are subject to verification that the purchaser is not younger than 18 years
old. Verification of age through the mail shall consist of, at a minimum,
ensuring that the person to whom the product is being sent supplies a legible
photocopy of a valid government-issued identification;
(b) Vending machines that are located in
facilities 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; and
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 minors 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 adult-only retail facilities.
(d) Within an adult-only retail facility,
distribution of no more than one free sample per day to an individual adult.
With respect to little cigars, "sample" means one pack of little cigars in the
smallest size package distributed by the manufacturer for individual consumer
use. With respect to cigars, "sample" means one pack of cigars in the smallest
size package distributed by the manufacturer for individual consumer use or, if
such cigars are not distributed in packs, no more than five individual
cigars.
(5)
Advertising Restrictions. Except as provided in 940
CMR 22.06(6), 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) Outdoor advertising of cigars
or little cigars, including advertising in enclosed stadiums and advertising
from within a retail establishment that is directed toward or visible from the
outside of the establishment, in any location within a 1,000 foot radius of any
public playground, playground area in a public park, elementary school or
secondary school;
(b) Point-of-sale
advertising of cigars or little cigars any portion of which is placed lower
than five feet from the floor of any retail establishment which is located
within a one thousand foot radius of any public playground, playground area in
a public park, elementary school or secondary school, and which is not an
adult-only retail establishment.
(6)
Exception to Prohibited
Advertising Practices. The following advertising practice is not
unfair or deceptive: A retailer may place one sign no larger than 576 square
inches and containing only black text on a white background stating "Tobacco
Products Sold Here" on the outside or visible from the outside of each location
where such products are offered for sale.
