About 20 tobacco retailers crowded into the Everett Health Department’s second-floor conference room on Monday, April 13 to tell the Board of Health that a federal crackdown on unauthorized vape products would hurt their businesses. They left without a decision, because the three-member board said there was none for it to make. “Tonight’s meeting was informational and not a hearing,” the minutes record the board saying. “They cannot make the decisions on this matter as it is a federal law.”
What the state said
Bonny Carroll, the state tobacco control officer assigned to Everett, brought Lisa Stevens, the tobacco control director with the Massachusetts Municipal Association, who provides legal help to cities and towns. Their message, as the minutes summarize it: the Food and Drug Administration must issue a marketing granted order before a tobacco or vape product can be sold, “if a product does not have a marketing granted order, that product is being sold illegally,” and federal law supersedes state and local rules. Because it is federal law, the state will not enforce it, but the state tobacco officer is required to report any illegal products found in a store to the FDA.
The state has been rolling out notice letters slowly so that each city’s solicitor can review them, “as it will be a big deal for retailers as a lot of the products on the shelves currently do not have marketing granted orders.” Somerville, which has only seven tobacco stores, got its letter first and set May 1 as the date to sell down inventory. Each city picks its own date, and some have given more time. Everett’s letter had not gone out as of April 13, so retailers may keep selling until the city chooses a date. When tobacco permits come up for renewal, the board could treat sales of unauthorized products as a violation of the federal law retailers agree to follow when they take out a permit, and decide whether to issue one. The board does not need to hold a hearing or change its regulations to do so.
What happened next
Chair Sean Connolly and members Deanne Mullett and Joan LaVecchio opened citizens’ time at 6:09 p.m. and closed it at 7:05 after the retailers spoke, and said information would go out after a meeting with the city solicitor. At its May 11 meeting the board was told the solicitor was still reviewing the FDA letter and that retailers would be kept informed. The board also spent the winter on the state’s tobacco penalty schedule: a $1,000 fine for a first violation, $2,000 for a second within 24 months and $5,000 for three or more, which cannot be reduced, plus a suspension of at least one and up to 30 days at the board’s discretion. Carroll had urged the board in December to change “may” to “shall” in its own rules to remove any ambiguity.
Also at the board this spring
- Health and Human Services Director Sabrina Firicano LoBono reported in January that the new Van Campen administration was evaluating every department, and in February that she had submitted the department’s budget. The Massachusetts Association of Health Boards told members in February that it is changing its rules and will require mandatory meetings for boards of health.
- A proposed body art regulation on areola tattooing, used in post-mastectomy reconstruction, was carried from April to the May and June agendas.
- The department reported it is fully staffed with school nurses and finished the state-mandated hearing, vision, height, weight and postural screenings.
The Board of Health meets monthly at 6 p.m. in Room 20 at City Hall, 484 Broadway.
