In April 2023 a Braintree health inspector entered the town’s Cumberland Farms on Washington Street for a routine compliance review.
The inspector claims that he saw an open box of Jazz brand black & mild cigars on display with the store’s other tobacco products. Such cigars fall into the category of “favored tobacco products” that are illegal to sell under Massachusetts’ aggressive tobacco laws.
Specifically, 105 CMR 665.010(D) states,
No person shall sell, distribute, cause to be sold or distributed, or offer for sale to a consumer located in the Commonwealth a flavored tobacco product or tobacco product flavor enhancer, except for a smoking bar for on-site consumption only in accordance with federal law and regulations.
As if this weren’t enough, nearly identical language may be found in G.L. c. 270, Sec. 28(b).
Citing these laws, the Braintree health officials fined Cumberland Farms $1,000 for displaying the flavorful contraband. The superior court upheld the fine and Cumberland Farms brought the case to the Supreme Judicial Court (SJC).
Cumberland Farms argued that
because the store did not intend to sell the product and its point-of-sale system would have prevented the product from being rung up and sold, the board’s finding that the store “offered for sale” a flavored tobacco product was unsupported by substantial evidence or was erroneous as a matter of law.
The SJC rejected this argument and made the following conclusion:
We conclude that the store’s manner of placement and display of the product, which would have led a customer reasonably to conclude that the product was available for purchase, supported the board’s finding that it was being “offered for sale.”
The full text of the SJC’s opinion is attached below.