Regulation Filing To be completed by filing agency
CHAPTER NUMBER:
CHAPTER TITLE :
AGENCY:
SUMMARY OF REGULATION : State the general requirements and purposes of this regulation.
REGULATORY AUTHORITY :
AGENCY CONTACT : PHONE:
ADDRESS:
Compliance with M.G.L. c. 30A
EMERGENCY ADOPTION -if this regulation is adopted as an emergency, state the nature of the emergency.
PRIOR NOTIFICATION AND /OR APPROVAL - If prior notification to and/or approval of the Governor,
Legislature or others  was required, list each notification, and/or approval and date, including notice to the Local 
Government Advisory Commission .
PUBLIC REVIEW - M.G.L. c. 30 A sections 2 and/or 3 requires notice of the hearing or comment period,
including a small business impact statement, be filed with the Secretary of the Commonwealth, published in 
appropriate newspapers, and sent to persons to whom specific notice must be given at least 21 days prior to 
such hearing or comment period.
Date of public hearing or comment period:THE COMMONWEALTH OF MASSACHUSETTS
William Francis Galvin
Secretary of the Commonwealth
Department of Public Health
105 CMR 665.000
Minimum Standards for Retail Sale of Tobacco and Electronic Nicotine Delivery 
Systems
Establishes standards for retail sale of tobacco products and electronic nicotine delivery systems, 
restricting sale and distribution of all flavored electronic nicotine delivery systems, including mint and 
menthol-flavored products, to age restricted locations and establishing the circumstances under 
which sales of electronic nicotine delivery systems can be banned or restricted if necessary to protect 
public health.
St. 2018, c. 157, §§ 17-19; M.G.L. c. 111, § 239; and M.G.L. c. 270, §§ 6, 7 
and 27-29
Rebecca Rodman 617-994-9811
250 Washington Street, Boston, MA 02108
See attached filing form addendum.
Massachusetts Municipal Association 12/11/19
Executive Office of Communities and Development 12/ 11/19Docket #  1,237
 131The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only.
The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm.FISCAL EFFECT -
Estimate the fiscal effect of the public and private sectors.
For the first and second year:
For the first five years:
No fiscal effect :
SMALL BUSINESS IMPACT - M.G.L. c. 30 A section 5 requires each agency to file an amended small
business impact statement with the Secretary of the Commonwealth prior to the adoption of a proposed 
regulation.  If the purpose of this regulation is to set rates for the state, this section does not apply.
CODE OF MASSACHUSETTS REGULATIONS INDEX - List key subjects that are relevant to this regulation:
PROMULGATION - State the action taken by this regulation and its effect on existing provisions of the Code
of Massachusetts Regulations (CMR) or repeal, replace or amend.  List by CMR number:
ATTESTATION - The regulation described herein and attached hereto is a true copy of the regulation
SIGNATURE : DATE :
Publication - To be completed by the Regulations Division
MASSACHUSETTS REGISTER NUMBER: DATE :
EFFECTIVE DATE :
CODE OF MASSACHUSETTS REGULATIONS
Remove these pages:                   Insert these pages:SIGNATURE ON FILEadopted by this agency. ATTEST :
1407 12/27/2019
12/11/2019 mrs12/11/2019Dec 11 2019 Private sector approx. $34M of lost sales in FY20, $76M in FY21; public sector: 
$175k annually.
Private sector approx. $80M lost sales annually after first 2 fiscal years; 
public sector $175k annually.
vaping, nicotine, e-cigarettes, tobacco
Promulgate 105 CMR 665.000
This is an Emergency 
Regulation.There are no Replacement 
Pages.Date amended small business impact statement was filed:
 132The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only.
The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm.Addendum to Massachusetts Secretary of State Regula tion Filing Form  
105 CMR 665.000, Minimum Standards for Retail Sale of Tobacco and El ectronic Nicotine Delivery 
Systems 
 
Compliance with M.G.L. c. 30A – Emergency Adoption 
This regulation is promulgated as an emergency regu lation because observance of the 
requirements of notice and a public hearing would b e contrary to the public interest. In An Act 
Modernizing Tobacco Control (the “Act”), the legisl ature found that the deferred operation of the 
Act would tend to defeat its purpose; therefore the  legislature declared this Act to be an 
emergency law, necessary for the immediate preserva tion of the public health.  The Act imposes 
immediate restrictions on the sale and distribution  of certain electronic nicotine delivery systems 
(“ENDS”) and provides the Department with additiona l authority to regulate minors’ access to 
tobacco products, including ENDS, and to regulate t he sale of ENDS for all ages.   
Consistent with the legislature’s determination, th e Department finds that immediate adoption of 
these regulations implementing the Act is necessary  to preserve the public health, safety or 
general welfare.  Specifically, the Department of P ublic Health is promulgating these new 
regulations to respond to the youth epidemic of e-c igarette use and the association of vaping with 
severe lung disease. These new regulations will imp lement the Department’s authority to 
regulate the sale of ENDS and include provisions sp ecifying the circumstances under which the 
Commissioner may act to ban or restrict the sale of  ENDS to protect the public health.   
 
 
The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only.
The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm. 
The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only.
The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm.105 CMR:   DEPARTMENT OF PUBLIC HEALTH 
105 CMR 665.000: MINIMUM STANDARDS FOR RETAIL SALE O F TOBACCO AND 
ELECTRONIC NICOTINE DELIVERY SYSTEMS 
Section 
665.005: Definitions 
665.010: Sale of Tobacco Products and Electronic Nic otine Delivery Systems 
665.013: Permitting Requirements 
665.015: Required Signage 
665.017: Advertising 
665.020: Identification Requirements 
665.025: Prohibition on Coupons and Other Discounts 
665.030: Out-of-package Sales 
665.035: Liquid Nicotine Containers 
665.040: Requirements for Retail Establishments 
665.045: Violations 
665.050: Order to Cease and Desist 
665.055: Enforcement 
665.060: Severability 
665.005:   Definitions 
Board of Health  means the appropriate and legally designated healt h authority of the city, town, 
or other legally constituted governmental unit with in the Commonwealth having the usual 
powers and duties of the board of health of a city or town. 
Business Agent  means an individual who has been designated by the  owner or operator of any 
tobacco retail store or smoking bar to be the manag er or otherwise in charge of said 
establishment. 
Characterizing Flavor  means a distinguishable taste or aroma, other than  the taste or aroma of 
tobacco, imparted or detectable before or during co nsumption of a tobacco product, including, 
but not limited to, a taste or aroma relating to an y fruit, chocolate, vanilla, honey, candy, cocoa, 
dessert, alcoholic beverage, menthol, mint, winterg reen, herb, or spice; provided, however, that 
no tobacco product shall be determined to have a ch aracterizing flavor solely because of the 
provision of ingredient information or the use of a dditives or flavorings that do not contribute 
to the distinguishable taste or aroma of the produc t. 
Child-resistant Packaging  means packaging intended to reduce the risk of a c hild ingesting 
nicotine and that meets the minimum standards of 16  C.F.R. 1700 et seq ., pursuant to 15 U.S.C. 
1471 through 1476. 
Coupon  means any card, paper, note, form, statement, tick et or other communication distributed 
for commercial or promotional purposes to be later surrendered by the bearer so as to receive an 
article, service or accommodation without charge or  at a discount price. 
Department  means the Massachusetts Department of Public Healt h. 
Distinguishable  means perceivable by either the sense of smell or taste. 
Electronic Nicotine Delivery System  means an electronic device, whether for one-time u se or 
reusable, that can be used to deliver nicotine or a nother substance to a person inhaling from the 
device including, but not limited to, electronic ci garettes, electronic cigars, electronic cigarillos,
electronic pipes, vaping pens, hookah pens and othe r similar devices that rely on vaporization 
or aerosolization; provided, however, that "electro nic nicotine delivery system" shall also include 
any noncombustible liquid or gel that is manufactur ed into a finished product for use in such 
electronic device; provided further, that "electron ic nicotine delivery system" shall also include 
any component, part, or accessory of a device used during the operation of the device even if the 
part or accessory was sold separately; provided fur ther, that "electronic nicotine delivery system" 
shall not include a product that has been approved by the United States Food and Drug 
Administration for the sale of or use as a tobacco cessation product or for other medical purposes 
and is marketed and sold or prescribed exclusively for that approved purpose. 
12/27/19  (Effective 12/11/19) 3870.5 EMERGENCY
The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only.
The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm.105 CMR:   DEPARTMENT OF PUBLIC HEALTH 
665.005:   continued 
Electronic Nicotine Delivery System Flavor Enhancer  means any product designed, 
manufactured, produced, marketed or sold to produce  a characterizing flavor when added to any 
electronic nicotine delivery system. 
Flavored Electronic Nicotine Delivery System  means any electronic nicotine delivery system, 
or component part thereof that contains a constitue nt that has or produces a characterizing flavor. 
A public statement, claim or indicia made or dissem inated by the manufacturer of an electronic 
nicotine delivery system, or by any person authoriz ed or permitted by the manufacturer to make 
or disseminate public statements concerning such el ectronic nicotine delivery system, that such 
electronic nicotine delivery system  has or produce s a characterizing flavor shall constitute 
presumptive evidence that the electronic nicotine d elivery system is a Flavored Electronic 
Nicotine Delivery System. 
Liquid Nicotine Container  means a package: 
(1)   from which nicotine or other substance in a s olution or other form is accessible through 
normal and foreseeable use by a consumer; and 
(2)   that is used to hold soluble nicotine or othe r substance in any concentration; provided 
however, that "liquid nicotine container" shall not  include a sealed, prefilled and disposable 
container of nicotine or other substance in a solut ion or other form in which the container is 
inserted directly into an electronic cigarette, ele ctronic nicotine delivery system or other 
similar product if the nicotine or other substance in the container is inaccessible through 
customary or reasonably foreseeable handling or use , including reasonably foreseeable 
ingestion or other contact by children. 
Listed or Non-discounted Price  means the higher of the price listed for a tobacco  product on its 
package or the price listed on any related shelving , posting, advertising or display at the place 
where the tobacco product is sold or offered for sa le plus all applicable taxes if such taxes are 
not included in the state price, and before the app lication of any discounts or coupons. 
Minimum Legal Sales Age  means the minimum age of a person to whom a tobacc o product may 
be sold or provided as determined by the Board of H ealth, provided that such age may not be 
younger than 21 years old except for those individu als who are 18 years of age before 
December 31, 2018, as verified by said person's pro of of identification; provided further that a
person who is 18 years of age before December 31, 2 018 shall be subject to any municipal 
ordinance, by-law or other regulation that prohibit ed sales of tobacco products to persons 
younger than 19, 20 or 21 years old in effect on De cember 30, 2018. 
Person  means any individual, firm, fiduciary, partnership , corporation, trust or association, 
however formed, or a club, trustee, agency or recei ver. 
Retail Establishment  means a physical place of business or a section of  a physical place of 
business in which a tobacco product is offered for sale to consumers. 
Retailer  means a person that operates a retail establishmen t. 
Retail Tobacco Store  means an establishment which is not required to po ssess a retail food 
permit whose primary purpose is to sell or offer fo r sale to consumers, but not for resale, tobacco 
products and paraphernalia, in which the sale of ot her products is merely incidental, and in which 
the entry of persons younger than 21 years old is p rohibited at all times, and maintains a valid 
permit for the retail sale of tobacco products as r equired to be issued by the appropriate authority 
in the city or town where the establishment is loca ted. 
Smoking Bar  means an establishment that: 
(1)   exclusively occupies an enclosed indoor space  and is primarily engaged in the retail sale 
of tobacco products  for consumption by customers o n the premises; 
(2) derives revenue from the sale of food, alcohol or other beverages that is incidental to the 
sale of a tobacco product and prohibits entry to a person younger than 21 years old; 
(3)   prohibits a food or beverage not sold directl y by the establishment from being consumed 
on the premises; 
12/27/19  (Effective 12/11/19) 3870.6 EMERGENCY
The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only.
The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm.105 CMR:   DEPARTMENT OF PUBLIC HEALTH 
665.005:   continued 
(4)   maintains a valid permit for the retail sale of a tobacco product as required to be issued 
by the appropriate authority in the city or town in  which the establishment is located; and 
(5)   maintains a valid permit issued by the depart ment of revenue to operate as a smoking 
bar. 
Tobacco Product  means a product containing, made or derived from t obacco or nicotine that is 
intended for human consumption, whether smoked, che wed, absorbed, dissolved, inhaled, 
snorted, sniffed or ingested by any other means inc luding, but not limited to, cigarettes, cigars, 
little cigars, chewing tobacco, pipe tobacco, snuff , electronic cigarettes, electronic cigars, 
electronic pipes, electronic nicotine delivery syst ems or any other similar products that rely on 
vaporization or aerosolization; provided, however, that ''tobacco product'' shall also include any 
component, part or accessory of a tobacco product; and provided further, that ''tobacco product'' 
shall not include a product that has been approved by the United States Food and Drug 
Administration for the sale of or use as a tobacco cessation product and is marketed and sold 
exclusively for the approved purpose. 
665.010:   Sale of Tobacco Products and Electronic Nicotine Delivery Systems 
(A)   No person shall sell or provide a tobacco pro duct to any individual under the minimum 
legal sales age, as verified by said person's valid  government-issued photographic identification. 
(B)   Retail establishments other than retail tobac co stores or smoking bars shall not place any 
tobacco product on the counter, but shall place all  tobacco products for sale behind the counter 
where retail sales are made in the establishment an d out of the reach of consumers. 
(C)    No person shall sell an electronic nicotine delivery system with nicotine content greater 
than 35 milligrams per milliliter outside of a reta il tobacco store or smoking bar. 
Retail establishments, including retail tobacco sto res or smoking bars, may sell or provide 
unflavored electronic nicotine delivery systems wit h nicotine content less than or equal to 35 
milligrams per milliliter.  Prior to the sale of su ch a product in a retail establishment other than 
a retail tobacco store or smoking bar, the product' s manufacturer must submit to the owner, 
retailer, or other person in charge of any retail e stablishment that is not a retail tobacco store or 
smoking bar documentation indicating the nicotine c ontent expressed as milligrams per milliliter 
for each product to be sold in the retail establish ment.  The owner, retailer, or other person in 
charge of the retail establishment must maintain re cord of the nicotine content submitted by the 
manufacturer for each electronic nicotine delivery system sold or offered for sale within the retail 
establishment, and provide such records upon reques t of any authorized enforcement agent, 
including Boards of Health or their agents and the Department or its agents. 
(D)   No person, retail establishment, or manufactu rer shall sell, distribute, cause to be sold or 
distributed, or offer for sale to a consumer locate d in the Commonwealth a flavored electronic 
nicotine delivery system or electronic nicotine del ivery system flavor enhancer except for a 
smoking bar for on-site consumption. 
(E)   No person, retail establishment, or manufactu rer shall sell online, distribute online, or cause 
to be sold or distributed online to any consumer lo cated in the Commonwealth, an electronic 
nicotine delivery system, except for a non-flavored  electronic nicotine delivery system with 
nicotine content less than or equal to 35 milligram s per milliliter. 
665.013:   Permitting Requirements 
(A)   All retail tobacco stores and smoking bars sh all obtain prior to operation and shall maintain 
during any period of operation a municipal permit a llowing the sale or distribution of tobacco 
products. 
(B)   Retail tobacco stores and smoking bars in ope ration prior to December 11, 2019, and 
compliant with all then existing permitting require ments in the municipality in which they 
operate shall not be subject to 105 CMR 665.013(A) unless the municipality in which they 
operate later imposes a municipal permitting requir ement applicable to such establishments. 
12/27/19  (Effective 12/11/19) 3870.7 EMERGENCY
The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only.
The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm.105 CMR:   DEPARTMENT OF PUBLIC HEALTH 
665.015:   Required Signage 
(A) All retail establishments, including smoking ba rs and retail tobacco stores, shall 
conspicuously post signage, in the form developed a nd made available by the Department.  Such 
signage shall include: 
(1)   a copy of M.G.L. c. 270, §§ 6 and 6A; 
(2)   referral information for smoking cessation re sources; 
(3)   a statement that sale of tobacco products, in cluding e-cigarettes, to someone under the 
minimum legal sales age of 18 years old is prohibit ed; 
(4)   health warnings associated with using electro nic nicotine delivery systems; and 
(5)   except in the case of smoking bars, notice to  consumers that the sale of flavored 
electronic nicotine systems are prohibited at all t imes.  Such signage shall be posted 
conspicuously in the retail establishment or other place in such a manner so that it may be 
readily seen by a person standing at or approaching  the cash register.  The notice shall 
directly face the purchaser and shall not be obstru cted from view or placed at a height of less 
than four feet or greater than nine feet from the f loor. 
(B)   In addition to the signage required by 105 CM R 665.015(A), smoking bars and retail 
tobacco stores shall post signage, in the form deve loped and made available  by the Department, 
on the exterior of the door providing entrance to t he tobacco retail store or smoking bar and such 
sign shall not be obstructed from view or placed at  a height of less than four feet or greater than 
nine from the bottom of the door.  Such signage sha ll: 
(1)   warn persons entering that smoking and vaping  may be present on the premises, and 
provide information concerning the health risks ass ociated with second-hand smoke and the 
use of electronic nicotine delivery systems; and 
(2) state that "No person younger than 21 years old  is permitted on the premises at any time." 
(C)   The owner, retailer, or other person in charg e of a retail establishment shall conspicuously 
post any additional signs required by the Departmen t in a form and manner as required by the 
Department. 
(D)   Any person who violates 105 CMR 665.015 shall  be subject to the provisions of 105 CMR 
665.045; provided that any retail establishment who  violates 105 CMR 665.015(A)(a) or 
105 CMR 665.015(A)(b) shall additionally be subject  to a fine of not more than $50.  Any person 
found to have unlawfully removed a copy of the post ings required by 105 CMR 665.015(A)(a) 
or 105 CMR 665.015(A)(b) shall be punished by a fin e of not more than $10.00. 
665.017:   Advertising 
   No person or retail establishment shall: 
(A)   Market or advertise a proposed sale or distri bution of any tobacco product prohibited for 
sale or distribution within the retail establishmen t; 
(B)   Use fraudulent or misleading statements in ad vertisements for tobacco products, including 
the use of any safety or efficacy claims that have not been approved by the United States Food 
and Drug Administration; or 
(C)   Use or display tobacco product advertisements  that depict celebrities, mascots, 
sponsorships, cartoons, or any other similar endors ements. 
665.020:   Identification Requirements 
(A)   Unless otherwise specified in 105 CMR 665.000 , each person selling or providing  tobacco 
products shall verify the age of the purchaser by m eans of a valid government-issued 
photographic identification containing the bearer's  date of birth that the purchaser is the 
minimum legal sales age, as verified by said person 's proof of identification. 
(B)   In addition to the requirements of 105 CMR 66 5.020(A), an employee of a retail tobacco 
store or smoking bar must inspect the individual's valid government-issued photographic 
identification and determine the individual's age p rior to said individual entering said tobacco 
retail store or smoking bar.  An individual shall n ot be admitted to the tobacco retail store or 
smoking bar unless the employee has verified that t he individual meets minimum legal sales age, 
as verified by said person's proof of identificatio n. 
12/27/19  (Effective 12/11/19) 3870.8 EMERGENCY
The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only.
The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm.105 CMR:   DEPARTMENT OF PUBLIC HEALTH 
665.020:   continued 
(C)   Mail-order or internet sales shall require ve rification that the purchaser is at least the 
Minimum Legal Sales Age.  Verification of age throu gh the mail or internet shall consist of, at 
a minimum: 
(1)   verification that the purchaser is of the Min imum Legal Sales Age through a 
commercially available database, or aggregate of da tabases, 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 deli very that requires signature of a person who 
is of the Minimum Legal Sales Age before the shippi ng package is released. 
(3)   Any information required to complete the age verification process must be requested on 
a form separate from that used to collect payment i nformation, 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. 
665.025:   Prohibition on Coupons and Other Discoun ts 
No person shall accept or redeem, offer to accept o r redeem, or cause or hire any person to 
accept or redeem or offer to accept or redeem any c oupon that provides any tobacco product 
without charge or for less than the listed or non-d iscounted price.  No retail establishment that 
is not a retail tobacco store or smoking bar, or an y other establishment shall distribute or cause 
to be distributed a free sample of a tobacco produc t. 
665.030:   Out-of-package Sales 
(A)   The sale of tobacco products, as defined in 1 05 CMR 665.000, in any form other than an 
original factory wrapped package is prohibited, inc luding the repackaging or dispensing of any 
tobacco product for retail sale. 
(B)   No person shall refill a cartridge that is pr efilled and sealed by the manufacturer and not 
intended to be opened by the consumer or retailer. 
665.035:   Liquid Nicotine Container Packaging 
No person shall knowingly sell or provide: 
(A)   A liquid or gel substance containing nicotine  unless the substance is contained in child- 
resistant packaging; or 
(B)  A liquid nicotine container unless the contain er includes child-resistant packaging as 
part of its design. 
665.040:   Requirements for Retail Establishments 
A retail establishment operating on or after Decemb er 11, 2019, must meet the following 
requirements: 
(A)   Only establishments with a permanent, non-mob ile location are eligible to operate. 
(B)   Operation of a retail establishment shall be conditioned on the retailer's or retail 
establishment owner's consent to unannounced, perio dic inspections of his or her retail 
establishment and tobacco products to ensure compli ance with 105 CMR 665.000 and any 
applicable local regulations, orders, or ordinances . 
(C)   A retail establishment shall be prohibited fr om selling tobacco products if the retailer or 
owner of the retail establishment has failed to pay  all fines issued and the time period to appeal 
the fines has expired and/or the retail establishme nt has not satisfied any outstanding orders 
issued pursuant to 105 CMR 665.000. 
(D)   Sale of a tobacco product by a retail establi shment to a person under the minimum sales age 
shall result in the retail establishment being proh ibited from selling tobacco products for up to 
30 consecutive business days. 
12/27/19  (Effective 12/11/19) 3870.9 EMERGENCY
The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only.
The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm.105 CMR:   DEPARTMENT OF PUBLIC HEALTH 
665.045:   Violations 
Unless otherwise specified or provided for in 105 C MR 665.000, violations of 105 CMR 
665.000 shall be assessed as follows: 
(A)   It shall be the responsibility of any person to ensure compliance with 105 CMR 665.000. 
If an inspection pursuant to 105 CMR 665.000 reveal s a retail establishment, and/or his or her 
business agent does not comply with the provisions of 105 CMR 665.000, the retail 
establishment shall be ordered to comply with the v iolated provision of 105 CMR 665.000.  In 
addition to the correction order, the following fin es and actions apply against any person who 
violates 105 CMR 665.000: 
(1)   In the case of a first violation, a fine of $ 1,000 shall be imposed. 
(2)   In the case of a second violation within a pe riod of 36 months from the first violation, 
a fine of $2,000 shall be imposed; and a prohibitio n on the sale of tobacco products may be 
imposed for at least one day and up to seven consec utive business days. 
(3)   In the case of a third violation within a per iod of 36 months from the first violation or 
additional violations during that time period, a fi ne of $5,000 shall be imposed; and a 
prohibition on the sale of tobacco products may be imposed for at least seven consecutive 
business days and up to 30 consecutive business day s. 
(B)   Failure to cooperate with inspections pursuan t to this regulation shall result in the 
prohibition on the sale of tobacco products for up to 30 consecutive business days. 
(C)  Consistent with 105 CMR 665.055, a retail esta blishment shall be provided notice of the 
intent to prohibit the sale of tobacco products at or by the retail establishment.  The notice shall 
contain the reasons therefor and establish a time a nd date for a hearing.  The retail establishment 
or its business agent shall have an opportunity to be heard at such hearing and shall be notified 
of the decision regarding the retail establishment' s prohibition from selling tobacco products and 
the reasons therefor in writing.  After a hearing, the retail establishment may be prohibited from 
selling tobacco products upon a finding that a viol ation of 105 CMR 665.000 for which such 
prohibition is applicable occurred.  All tobacco pr oducts shall be removed from the retail 
establishment upon an indefinite suspension from op erating as a retail establishment.  Failure to 
remove all tobacco products shall constitute a sepa rate violation of 105 CMR 665.000. 
(D)   Separate Violations .  Each day any violation of 105 CMR 665.000 exists  shall be deemed 
to be a separate offense. 
665.050:   Order to Cease and Desist 
(A)   An Order to Cease and Desist may be issued by  the Department or Board of Health to a 
person or a business agent of a retail establishmen t upon the regulatory authority's reasonable 
belief that: 
(1)   A person is conducting sales of tobacco produ cts in violation of the law, regulations, 
and/or standards applicable to it; 
(2)    A person refuses access to the premises and/ or records to authorized enforcement 
agents; 
(3)   A person or retail establishment is operating  in a manner that may pose an imminent 
danger to the public health; 
(4)   A retail establishment has failed to comply w ith a correction order within the time 
specified; or 
(5)   A retail establishment is operating in a mann er that is unsafe or otherwise below the 
accepted standards for the type of operation and su mmary closure is authorized by statute on 
these grounds. 
(B)   Service of Orders to Cease and Desist shall b e on the person or retail establishment or 
business agent of the retail establishment by: 
(1)   Personal delivery by an agent of the regulato ry agency; 
(2)   Posting in a conspicuous place at the retail establishment; 
(3)   Simultaneously mailing, by first class and ce rtified mail return receipt requested; or 
(4)   By any officer of the Commonwealth authorized  to make service. 
Notice is deemed to be served if the person or reta il establishment or business agent of the 
retail establishment has actual notice of the Order  to Cease and Desist. 
12/27/19  (Effective 12/11/19) 3870.10 EMERGENCY
The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only.
The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm.105 CMR:   DEPARTMENT OF PUBLIC HEALTH 
665.055:   Enforcement 
(A)  Local Enforcement .
 (1)   General Procedures .  Unless otherwise expressly provided in any gener al law to the 
contrary, each board of health may enforce 105 CMR 665.000, or otherwise at law or in 
equity in the same manner that local rules and regu lations are enforced. 
(2)   Emergency Procedures .
(a)   Whenever an emergency related to tobacco prod ucts exists in which the interest of 
protecting the public health requires that ordinary  procedures be dispensed with, the 
board of health or its authorized agent, acting in accordance with the provisions of 
M.G.L. c. 111, § 30, may, without notice or hearing , issue an order reciting the existence 
of the emergency and requiring that such action be taken as the board of health deems 
necessary to meet the emergency.  Any person to who m such order is directed shall 
comply therewith within the time specified in the o rder.  Each day's failure to comply 
with the order shall constitute a separate offense.   Upon compliance with the order and 
within seven days after the day the order has been served, he or she may file a written 
petition in the office of the board of health reque sting a hearing.  He or she shall be 
granted a hearing as soon as possible, but not late r than ten days after the filing of the 
petition.  The procedures for such hearing shall ot herwise conform with the hearing 
requirements which would have existed had the order  been issued under non-emergency 
circumstances. 
(b)   No provision of 105 CMR 665.055(A)(b) shall b e construed as a limitation on the 
emergency powers of the Department of Public Health  of the Commonwealth or its 
Commissioner. 
(B)   Complaints .  Any person who desires to register a complaint p ursuant to the regulation may 
do so by contacting the Board of Health or its desi gnated agent(s) in the town where the retail 
establishment is located. 
(C)   State Enforcement .
(1)   Whenever any Board of Health has failed after  a reasonable length of time to enforce 
105 CMR 665.000 the Commissioner of Public Health o f the Commonwealth or his or her 
designated representative may act for the Commonwea lth in any way that the local board of 
health is authorized to act to effect compliance. 
(2)  Upon the determination by the federal Food and  Drug Administration or the federal 
Centers for Disease Control and Prevention or other  regulatory authority that an electronic 
nicotine delivery system has been shown by substant ial epidemiologic, laboratory, or other 
evidence to be the cause of an imminent danger to p ublic health, the Commissioner of Public 
Health may place a ban or restriction on the sale o f such electronic nicotine delivery system. 
(D)  Service of Orders .
(1)   Unless otherwise stated in 105 CMR 665.000, o rders issued under the provisions of 
105 CMR 665.000 shall be served on all persons resp onsible for the violation. 
(2)   These orders shall be served in the following  manner: 
(a)   personally, by any person authorized to serve  civil process; 
(b)   by any person authorized to serve civil proce ss by leaving a copy of the order at his 
or her last and usual place of abode; 
(c)  by sending him a copy of the order by register ed or certified mail, return receipt 
requested, if he is within the Commonwealth; or 
(d)   if his or her last and usual place of abode i s unknown or outside the Commonwealth, 
by posting a copy of the order in a conspicuous pla ce on or about the premises and by 
advertising it for at least three out of five conse cutive days in one or more newspapers 
of general circulation within the municipality wher ein the building or premises affected 
is situated. 
(E)  Hearings .
(1)   Procedure for Requesting and Holding Hearing .  Unless otherwise specified herein, the 
person or persons to whom any order has been served  pursuant to any section of 105 CMR 
665.000 may request a hearing before the Board of H ealth or the Department, as applicable, 
by filing with the Board of Health or the Departmen t, as applicable, within seven days after 
the day the order was served, a written petition re questing a hearing on the matter.  Upon 
receipt of such petition, the Board of Health or th e Department, as applicable, shall set a time 
12/27/19  (Effective 12/11/19) 3870.11 EMERGENCY
The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only.
The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm.105 CMR:   DEPARTMENT OF PUBLIC HEALTH 
665.055:   continued 
and place for such hearing and shall inform the pet itioner thereof in writing.  The hearing 
shall be commenced not later than 30 days after the  day on which the order was served.  The 
Board of Health or the Department, as applicable, u pon application of the petitioner, may 
postpone the date of hearing for a reasonable time beyond such 30-day period if in the 
judgment of the Board of Health or the Department, as applicable, the petitioner has 
submitted a good and sufficient reason for such pos tponement. 
(2)   Hearing of Petitioner .  At the hearing the petitioner shall be given an opportunity to be 
heard and to show why the order should be modified or withdrawn. 
(3)  Procedure by the Board after Hearing .  After the hearing the Board of Health or the 
Department, as applicable, shall sustain, modify, o r withdraw the order and shall inform the 
petitioner in writing of its decision.  If the Boar d of Health or the Department, as applicable, 
sustains or modifies the order, it shall be carried  out within the time period allotted in the 
original order or in the modification. 
(4)   Public Record .  Every notice, order, or other record prepared by  the Board of Health or 
the Department, as applicable, connection with the hearing shall be entered as a matter of 
public record in the office of the clerk of the cit y or town, or in the office of the Board of 
Health or the Department, as applicable. 
(5)   Hearing Petition not Submitted or Sustaining of Order .  If a written petition for a hearing 
is not filed with the board of health within seven days after the day an order has been served 
or if after a hearing the order has been sustained in any part, each day's failure to comply with 
the order as issued or modified shall constitute an  additional offense. 
(F)   Judicial Appeals .  Any person aggrieved by the final decision of th e Board of Health or the 
Department, as applicable, with respect to any orde r or other action taken with respect to 
105 CMR 665.000 may seek relief therefrom in any co urt of competent jurisdiction, as provided 
by the laws of this Commonwealth. 
665.060:   Severability 
If any provision of 105 CMR 665.000 is declared inv alid or unenforceable, the other 
provisions shall not be affected thereby but shall continue in full force and effect. 
REGULATORY AUTHORITY 
105 CMR 665.000: St. 2018, c. 157, §§ 17 through 19;  M.G.L. c. 111, § 239; and 
M.G.L. c. 270, §§ 6, 7, and 27 through 29. 
12/27/19  (Effective 12/11/19) 3870.12 EMERGENCY
The text of the regulations published in the electronic version of the Massachusetts Register is unofficial and for informational purposes only.
The official version is the printed copy which is available from the State Bookstore at http://www.sec.state.ma.us/spr/sprcat/catidx.htm.