105 CMR:   DEPARTMENT OF PUBLIC HEALTH  
 
 
 105 CMR 665.000:   MINIMUM STANDARDS FOR RETAIL SALE OF TOBACCO AND 
ELECTRONIC NICOTINE DELIVERY SYSTEMS  
 
Section  
 
665.005:  Definitions  
665.010:  Sale of Tobacco Products and Electronic Nicotine 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 
665.057:  Preemption  
665.060:  Severability  
 
665.005:    Definitions  
 
Board of Health  means the appropriate and legally designated health authority of the city, 
town, or other legally constituted governmental unit within the Commonwealth having the 
usual powers and duties of the board of health of a city or town. 
 
Business Agent  means an i ndividual who has been designated by the owner or operator of any 
tobacco retail store or smoking bar to be the manager or otherwise in charge of said 
establishment.  
 
Characterizing Flavor  means a distinguishable taste or aroma, other than the taste or aro ma of 
tobacco, imparted or detectable before or during consumption of a tobacco product, including, 
but not limited to, a taste or aroma relating to any fruit, chocolate, vanilla, honey, candy, cocoa, 
dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice; provided, however, 
that no tobacco product shall be determined to have a characterizing flavor solely because of 
the provision of ingredient information or the use of additives or flavorings that do not 
contribute to the distinguishable t aste or aroma of the product.  
 
Child -resistant Packaging  means packaging intended to reduce the risk of a child 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 ca rd, paper, note, form, statement, ticket 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.  
 
Departmen t means the Massachusetts Department of Public Health.  
 
Distinguishable  means perceivable by either the sense of smell or taste.  
 
Electronic Nicotine Delivery System  means an electronic device, whether for one- time use or 
reusable, that can be used to deli ver nicotine or another substance to a person inhaling from the 
device including, but not limited to, electronic cigarettes, electronic cigars, electronic 
cigarillos, electronic pipes, vaping pens, hookah pens and other similar devices that rely on 
vaporiz ation or aerosolization; provided, however, that "electronic nicotine delivery system" 
shall also include any noncombustible liquid or gel that is manufactured into a finished product 
for use in such electronic device; provided further, that "electronic ni cotine 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 further, 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  105 CMR:   DEPARTMENT OF PUBLIC HEALTH  
 
 
 purpose.  
 
Electro nic 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 constituent that has or produces a characterizing 
flavor.  A public statement, claim or indicia made or disseminated by the manufacturer of an 
electronic nicotine delivery s ystem, or by any person authorized or permitted by the 
manufacturer to make or disseminate public statements concerning such electronic nicotine 
delivery system, that such elect ronic nicotine delivery system has or produces a characterizing 
flavor shall co nstitute presumptive evidence that the electronic nicotine delivery system is a 
Flavored Electronic Nicotine Delivery System.  
 
Flavored Tobacco Product  means any tobacco product, or component part thereof that 
contains a constituent that has or produces a characterizing flavor.  A public statement, 
claim or indicia made or disseminated by the manufacturer of a tobacco product, or by 
any person authorized or permitted by the manufacturer to make or disseminate public 
statements concerning such tobacco product, that such tobacco product has or produces 
a characterizing flavor shall constitute presumptive evidence that the tobacco product is 
a Flavored Tobacco Product. 
 
Liquid Nicotine Container means a package:  
(1)   from  which nicotine or other substance in a solution or other form is accessible 
through normal and foreseeable use by a consumer; and  
(2)   that is used to hold soluble nicotine or other 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 solution or other form in which the 
container is inserted directly into an electronic cigarette, electronic nicotine delivery 
system or other simi lar 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 sale plus all applicable taxes if such taxes are 
not included in the state price, and before the application of any discounts or coupons. 
 
Person  means any individual, firm, fiduciary, partnership, corporation, trust or association, 
however formed, or a club, trustee, agency or receiver.  
 
Retail Establishmen t 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 establishment.  
 
Retail Tobacco Store  means an establishment which  is not required to possess a retail food 
permit whose primary purpose is to sell or offer for sale to consumers, but not for resale, 
tobacco products and paraphernalia, in which the sale of other products is merely incidental, 
and in which the entry of pe rsons younger than 21 years of age  is prohibited at all times, and 
maintains a valid permit for the retail sale of tobacco products as required to be issued by the 
appropriate authority in the city, town , or other legally constituted governmental unit within 
the Commonwealth  where the establishment is located.  
 
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 on the premi ses; 
(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  of age ; 
(3)   prohibits a food or beverage not sold directly by the establi shment from being 
consumed on the premises;  
(4)   maintains a valid permit for the retail sale of a tobacco product as required to be issued  105 CMR:   DEPARTMENT OF PUBLIC HEALTH  
 
 
 by the appropriate authority in the city, town, or other legally constituted governmental 
unit within the Commonwea lth in which the establishment is located; and  
(5)   maintains a valid permit issued by the department of revenue to operate as a smoking 
bar. 
 
Tobacco Product  means a product containing, made or derived from tobacco or nicotine that is 
intended for human consumption, whether smoked, chewed, absorbed, dissolved, inhaled, 
snorted, sniffed or ingested by any other means including, but not limited to, cigarettes, c igars, 
little cigars, chewing tobacco, pipe tobacco, snuff, electronic cigarettes, electronic cigars, 
electronic pipes, electronic nicotine delivery systems or any other similar products that rely on 
vaporization or aerosolization regardless of nicotine co ntent in the product ; 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 Stat es 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.  
 
Tobacco Product Flavor Enhancer  means any product designed, manufactured, 
produced, marketed, or sold to p roduce a characterizing flavor when added to any 
tobacco product.    
 
665.010:    Sale of Tobacco Products and Electronic Nicotine Delivery Systems  
 
(A)   No person shall sell or provide a tobacco product to any individual  younger than 21 years 
of age, as v erified by said person's valid government -issued photographic identification. 
 
(B)   Retail establishments other than retail tobacco stores or smoking bars shall not place any 
tobacco product on the counter, but shall place all tobacco products for sale be hind the counter 
where retail sales are made in the establishment and 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 retail tob acco store or smoking bar.  
Retail establishments, including retail tobacco stores or smoking bars, may sell or provide 
unflavored electronic nicotine delivery systems with nicotine content less than or equal to 35 
milligrams per milliliter.  Prior to the s ale of such a product in a retail establishment other than 
a retail tobacco store or smoking bar, such retail establishment shall obtain documentation 
from the product's manufacturer or the manufacturer’s agent  in a form and manner 
specified by the Departm entmust submit to the owner, retailer, or other person in charge of 
any retail establishment that is not a retail tobacco store or smoking bar documentation 
indicating , at minimum,  the nicotine content expressed as milligrams per milliliter for each 
product to be sold in the retail establishment.  A retail establishment may obtain such 
documentation through a distributor, provided the distributor obtained such 
documentation from the  product manufacturer or the manufacturer’s agent.   The 
owner, retailer, or other person in charge of the retail establishment must maintain record 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 request 
of any authorized enforcement agent, including Boards of Health or their agents and the 
Department or its agents.  
 
(D)   No person, retail establishment, or manufacturer shall sell, distribute, cause to be sold or 
distributed, or offer for sale to a consumer located in the Commonwealth a flavored tobacco 
product electronic nicotine delivery system or electronic nicotine delivery system  or tobacco 
product flavor enhancer except for a smoking bar for on -site consumption  only in accordance 
with federal law and regulations . 
 
(E)  Prior to the sale of a tobacco product, a retail establishment other than a smoking 
bar shall obtain documentation from the product’s manufacturer or the manufacturer’s 
agent certifying such tobacco product does not meet the definition of a flavored tobacco 
product or tobacco product flavor enhancer, and that the product lacks   any 
characterizing flavor.  A retail establishment may obtain such documenta tion through a 
distributor, provided the distributor obtained such documentation from the product 
manufacturer or the manufacturer’s agent.   The owner, retailer, or other person in 
charge of the retail establishment must maintain record of the certificatio n 
documentation submitted by the manufacturer for each tobacco product sold or offered  105 CMR:   DEPARTMENT OF PUBLIC HEALTH  
 
 
 for sale within the retail establishment, and provide such records upon request of any 
authorized enforcement agent, including Boards of Health or their agents and the 
Department or its agents.  
 
(EF)  No person, retail establishment, or manufacturer shall sell online, distribute online, or 
cause to be sold or distributed online to any consumer located 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 milligrams per milliliter.  
 
665.013:    Permitting Requirements  
 
(A)   All retail tobacco stores and smoking bars shall obtain prior to operation and shall 
maintain during any period of operation a municipal permit allowing the sale or distribution of 
tobacco products.  
 
(B)   Retail tobacco stores and smoking bars in operation prior to December 11, 2019, and 
compliant with all then existin g permitting requirements 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 requirement applicable to such establishments.  
 
665.015:    Req uired Signage  
 
(A) All retail establishments, including smoking bars and retail tobacco stores, shall 
conspicuously post signage, in the form developed and made available by the Department.  
Such signage shall include:  
(1)   a copy of M.G.L. c. 270, §§ 6 a nd 6A;  
(2)   referral information for smoking cessation resources;  
(3)   a statement that sale of tobacco products, including e -cigarettes, to someone  younger 
than 21 years of age  is prohibited;  
(4)   health warnings associated with using electronic nicot ine delivery systems; and  
(5)   except in the case of smoking bars, notice to consumers that the sale of flavored 
tobacco products electronic nicotine systems  are prohibited at all times.  Such signage 
shall be posted conspicuously in the retail establishm ent 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 obstructed from view or placed at a 
height of less than four feet or greater than nine feet from the floor.  
 
(B)   In addition to the signage required by 105 CMR 665.015(A), smoking bars and retail 
tobacco stores shall post signage, in the for m developed and made available by the 
Department, on the exterior of the door providing entrance to the 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 shall : state that "No 
person younger than 21 years old is permitted on the premises at any time."  
 
(C)   In addition to the signage required by 105 CMR 665.015(A) and (B), all smoking bars 
and those retail tobacco stores that allow for onsite consumption of tobacco products shall post 
signage , in the form developed and made available by the Department, on the exterior of the 
door providing entrance to the 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 shall warn persons entering that smoking and vaping may 
be present on the premises, and provide information concerning the health risks associated 
with second hand smoke and the use of tobacco products, including electronic nicotine 
delivery systems.  
 
(D)  The owner, retailer, or other person in charge of a retail establishment shall 
conspicuously post any additional signs required by the Department in a form and manner as 
required by the Department.  
 
(E)   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)( 1) or 
105 CMR 665.015(A)( 2) shall additionally be subject to a fine of not more than $5 0.  Any 
person found to have unlawfully removed a copy of the postings required by 105 CMR 
665.015(A)( 1) or 105 CMR 665.015(A)( 2) shall be punished by a fine of $10.00. 
  105 CMR:   DEPARTMENT OF PUBLIC HEALTH  
 
 
 665.017:    Advertising  
 
(A)  No person or retail establishment shall:  
 
(1A)   Market or advertise the  proposed sale or distribution of any tobacco product 
prohibited for sale or distribution within the retail establishment or by such person;  
 
(2B)   Use fraudulent or misleading statements in advertisements 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  
 
(3C)   Use or display tobacco product advertisements that depict celebrities, mascots, 
sponsorships, cartoons, or any other similar endorsements.  
 
(B)  Retail establishments located within 500 feet of a public or private school providing 
education in kindergarten or any of grades one through 12, as measured by a straight 
line from the nearest point of the property line of such facility to the nearest  point of the 
property line of the establishment, are prohibited from displaying advertisements for 
tobacco products on any doors, walls, windows, walkways, abutting sidewalks, any other 
exterior -facing surfaces, or in any such manner that the advertisemen ts may be readily 
seen from the exterior of the establishment.   
 
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 means of a valid government -issued 
photographic identification containing the bearer's date of birth that the purchaser is at least 21 
years of  age, as verified by said person's proof of identification. 
 
(B)   In addition to the requirements of 105 CMR 665.020( 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 prior to said individual entering said tobacco 
retail store or smoking bar.  An in dividual shall not be admitted to the tobacco retail store or 
smoking bar unless the employee has verified that the individual is at least 21 years of  age, as 
verified by said person's proof of identification.  
 
(C)   Mail -order or internet sales shall requ ire verification that the purchaser is at least 21 years 
of age .  Verification of age through the mail or internet shall consist of, at a minimum:  
(1)   verification that the purchaser is at least 21 years of 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 at least 21 years of age before the shipping 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 information, shall not include 
personal information as defined by M.G.L. c. 93H, and shall not be used for any pu rposes 
other than age verification. 
 
665.025:    Prohibition on Coupons and Other Discounts  
 
 No person shall  accept or redeem, offer to accept or redeem, or cause or hire any person to 
accept or redeem or offer to accept or redeem any coupon that provides any tobacco product 
without charge or for less than the listed or non- discounted price.  No retail establishment that 
is not a retail tobacco store or smoking bar, or any other establishment shall distribute or cause 
to be distributed a free sample of a to bacco product.  
 
665.030:    Out -of-package Sales  
 
(A)   The sale of tobacco products, as defined in 105 CMR 665.000, in any form other than an 
original factory wrapped package is prohibited, including the repackaging or dispensing of any 
tobacco product for  retail sale.  
 
(B)   No person shall refill a cartridge that is prefilled and sealed by the manufacturer and not 
intended to be opened by the consumer or retailer.   105 CMR:   DEPARTMENT OF PUBLIC HEALTH  
 
 
  
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 container includes child -resistant packaging as 
part of its design.  
 
665.040:    Requirements for Retail Establishments  
 
A retail establishment operating on or after December 11, 2019, must meet the following 
requirements:  
 
(A)   Only establishments with a permanent, non -mobile location are eligible to operate.  
 
(B)   Operat ion of a retail establishment shall be conditioned on the retailer's or retail 
establishment owner's consent to unannounced, periodic inspections of his or her retail 
establishment and tobacco products to ensure compliance with 105 CMR 665.000 and any 
applicable local regulations, orders, or ordinances. 
 
(C)   A retail establishment shall be prohibited from 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 establishment has not satisfied any outstanding orders 
issued pursuant to 105 CMR 665.000. 
 
(D)   Sale of a tobacco product by a retail establishment to a person younger than 21 years of  
age shall result in the retail establishment being prohibited from selling tobacco products for 
up to 30 consecutive business days , or for a longer term as enacted, adopted, or promulgated in 
a rule, regulation or other measure by the appropriate and lega lly designated health authority of 
the city, town, or other legally constituted governmental unit within the Commonwealth. 
 
665.045:    Violations  
 
Unless otherwise specified or provided for in 105 CMR 665.000, violations of 105 CMR 
665.000 shall be assesse d 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 reveals a retail establishment, retailer, 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 violated provision of 105 CMR 665.000.  In 
addition to the correction order, the following fines and actions apply against any person who 
violates 105 CMR 665.000:  
(1)   In the cas e of a first violation, a fine of $1,000 shall be imposed.  
(2)   In the case of a second violation within a period of 36 months from the first violation, 
a fine of $2,000 shall be imposed; and a prohibition on the sale of tobacco products may be 
imposed fo r at least one day and up to seven consecutive business days , or for a longer term 
as enacted, adopted, or promulgated in a rule, regulation or other measure by the 
appropriate and legally designated health authority of the city, town, or other legally 
constituted governmental unit within the Commonwealth.  
(3)   In the case of a third violation within a period of 36 months from the first violation or 
additional violations during that time period, a fine of $5,000 shall be imposed; and a 
prohibition on the s ale of tobacco products may be imposed for at least seven consecutive 
business days and up to 30 consecutive business days , or for a longer term as enacted, 
adopted, or promulgated in a rule, regulation or other measure by the appropriate and 
legally designated health authority of the city, town, or other legally constituted 
governmental unit within the Commonwealth.  
 
(B)   Failure to cooperate with inspections pursuant to this regulation shall result in the 
prohibition on the sale of tobacco products for up to 30 consecutive business days , or for a 
longer term as enacted, adopted, or promulgated in a rule, regulation or other measure by the  105 CMR:   DEPARTMENT OF PUBLIC HEALTH  
 
 
 appropriate and legally designated health authority of the city, town, or other legally 
constituted governmental unit within the Commonwealth.  
 
(C)  Failure to pay a fine imposed pursuant to 105 CMR 665.000 shall constitute a 
separate violation of 105 CMR 665.000 subject to the penalties set forth at 105 CMR 
665.045(A). 
 
(D)  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 and date for a hearing.  The retail 
establishment , retailer,  or his or her  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 
violation of 105 CMR 665.000 for which such prohibition is applicable occurred.  All tobacco 
products shall be removed from the retail establishment upon an indefin ite suspension from 
operating as a retail establishment.  Failure to remove all tobacco products shall constitute a 
separate 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 establishment upon the regulatory authority's reasonable 
belief tha t: 
(1)   A person is conducting sales of tobacco products 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 esta blishment is operating in a manner that may pose an imminent 
danger to the public health;  
(4)   A retail establishment has failed to comply with a correction order within the time 
specified; or  
(5)   A retail establishment is operating in a manner that is unsafe or otherwise below the 
accepted standards for the type of operation and summary closure is authorized by statute 
on these grounds. 
 
(B)   Service of Orders to Cease and Desist shall be on the person or retail establishment or 
business agent of the r etail establishment by:  
(1)   Personal delivery by an agent of the regulatory agency;  
(2)   Posting in a conspicuous place at the retail establishment;  
(3)   Simultaneously mailing, by first class and certified mail return receipt requested; or 
(4)   By an y officer of the Commonwealth authorized to make service.  
Notice is deemed to be served if the person or retail establishment or business agent of the 
retail establishment has actual notice of the Order to Cease and Desist.  
 
665.055:    Enforcement  
 
(A)  No provision of 105 CMR 665.055 shall be construed as a limitation on the 
emergency powers of the Department of Public Health of the Commonwealth or its 
Commissioner.  
 
(B)  Local Enforcement . 
  (1)   General Procedures .  Unless otherwise expressly provided in any general 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 regulations are enforced.  
(2)   Emergency Procedures . 
 (a)  Whenever an emergency related to tobacco products 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  105 CMR:   DEPARTMENT OF PUBLIC HEALTH  
 
 
 emergency and requiring that such action be taken as the board of health deems necessary 
to meet the emergency.  Any person to whom such order is directed shall comply 
therewith within the time specified in the order.  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 w ritten petition in 
the office of the board of health requesting a hearing.  He or she shall be granted a hearing 
as soon as possible, but not later than ten days after the filing of the petition.  The 
procedures for such hearing shall otherwise conform wit h 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)( 2) shall be construed as a limitation on the 
emergency powers of the Department of Public Health of the Commonwealth or its 
Commissioner.  
 
(CB)   Complaints .  Any person who desires to register a complaint pursuant to the regulation 
may do so by contacting the Board of Health or its designated agent(s) in the city, town , or 
other legally constituted gove rnmental unit within the Commonwealth  where the retail 
establishment is located.  
 
(DC)   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 of the Commonwealth or his or her 
designated representative may act for the Commonwealth 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 substantial epidemiologic, laboratory, or other 
evidence to be the cause of an imminent danger to public health, the Commis sioner of 
Public Health may place a ban or restriction on the sale of such electronic nicotine delivery 
system.  
 
(ED)  Service of Orders . 
(1)   Unless otherwise stated in 105 CMR 665.000, orders issued under the provisions of 
105 CMR 665.000 shall be serve d on all persons responsible 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 process by leaving a copy of the or der at his 
or her last and usual place of abode;  
(c)  by sending him a copy of the order by registered or certified mail, return receipt 
requested, if he is within the Commonwealth; or  
(d)   if his or her last and usual place of abode is unknown or outside  the 
Commonwealth, by posting a copy of the order in a conspicuous place on or about the 
premises and by advertising it for at least three out of five consecutive days in one or 
more newspapers of general circulation within the municipality wherein the building or 
premises affected is situated.  
 
(FE)  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 Health or the Department, as 
applicable, by filing with the Board of Health o r the Department, as applicable, within 
seven days after the day the order was served, a written petition requesting a hearing on the 
matter.  Upon receipt of such petition, the Board of Health or the Department, as 
applicable, shall set a time a nd place f or such hearing and shall inform the petitioner 
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, upon 
application of the petitione r, 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 
postponement. 
(2)   Hearing o f 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, or withdraw the order and shall inform  105 CMR:   DEPARTMENT OF PUBLIC HEALTH  
 
 
 the petitioner in writing of its decision.  If the Board 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 off ice of the clerk of the city , town, other legally constituted 
governmental unit within the Commonwealth, 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 pe tition 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 cons titute an additional offense.  
 
(GF)   Judicial Appeals.  Any person aggrieved by the final decision of the Board of Health or 
the Department, as applicable, with respect to any order or other action taken with respect to 
105 CMR 665.000 may seek relief the refrom in any court of competent jurisdiction, as 
provided by the laws of this Commonwealth.  
 
665.057:  Preemption  
 
 The provisions of 105 CMR 665.000 shall not limit the right of an appropriate authority in a 
city or town to adopt rules and regulations as may be necessary; provided, however, that such a rule or 
regulation shall not conflict with regulations promulgated by the department or state or federal law.  
 
665.060:    Severability  
 
If any provision of 105 CMR 665.000 is declared invalid 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.