At its meeting on Wednesday, February 12, 2020, the Public Health Council approved the amendments to 105 CMR 665.000, 
Minimum Standards for Retail Sale of Tobacco and Electronic Nicotine Delivery Systems. The Department will file the final 
amended version of the regulation with the Secretary of the Commonwealth. The revised regula tion will become effective on 
March 6, 2020, which is the date of its publication in the Massachusetts Register. 
 
 105 CMR:   DEPARTMENT OF PUBLIC HEALTH 
 
 
 
12/27/19  (Effective 12/11/19) 3870.1 EMERGENCY 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 El ectronic 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 Re tail 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 lega lly designated health au thority 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 individua l who has been designated by the owner or operator of any 
tobacco retail store or smoking bar to be th e manager or otherwise in charge of said 
establishment. 
 
Characterizing Flavor means a dis tinguishable taste or aroma, othe r than the taste or aroma of 
tobacco, imparted or detectable  before or during c onsumption of a tobacc o product, including, 
but not limited to, a tast e or aroma relating to any fruit, choc olate, vanilla, honey, candy, cocoa, 
dessert, alcoholic beverage, menthol, mint, wint ergreen, herb, or spice; provided, however, 
that no tobacco product shall be determined to ha ve a characterizing flavor solely because of 
the provision of ingredient information or th e use of additives or flavorings that do not 
contribute to the dis tinguishable taste or aroma of the product. 
 
Child-resistant Packaging means packaging inte nded to reduce the risk of a child ingesting 
nicotine and that meets the min imum 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, ticket or  other communication 
distributed for commercial or pr omotional purposes to be later surrendered by the bearer so as 
to receive an article, service or accommodati on without charge or at a discount price. 
 
Department means the Massachusetts  Department of Public Health. 
 
Distinguishable means perceivable by e ither 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 deliver nicotine or  another substance to a person inhaling from the 
device including, but not limited to, electronic cigarettes, el ectronic cigars, electronic 
cigarillos, electronic pipes, vaping pens, hookah pe ns and other similar de vices that rely on 
vaporization or aerosolization; provided, however , that "electronic nico tine delivery system" 
shall also include any noncombustible liquid or ge l that is manufactured into a finished product 
for use in such electronic device; provided furthe r, that "electronic nicotine delivery system" At its meeting on Wednesday, February 12, 2020, the Public Health Council approved the amendments to 105 CMR 665.000, 
Minimum Standards for Retail Sale of Tobacco and Electronic Nicotine Delivery Systems. The Department will file the final 
amended version of the regulation with the Secretary of the Commonwealth. The revised regula tion will become effective on 
March 6, 2020, which is the date of its publication in the Massachusetts Register. 
 
 105 CMR:   DEPARTMENT OF PUBLIC HEALTH 
 
 
 
12/27/19  (Effective 12/11/19) 3870.2 EMERGENCY shall also include any component, part, or acces sory of a device used during the operation of 
the device even if the part or accessory was so ld separately; provided further, that "electronic 
nicotine delivery system" shall not include a product that has been approved by the United 
States Food and Drug Adminis tration for the sale of or use as  a tobacco cessatio n product or for 
other medical purposes and is marketed and sold  or prescribed exclus ively for that approved 
purpose. 
 
Electronic Nicotine Delivery System Flav or Enhancer means any product designed, 
manufactured, produced, marketed or sold to pr oduce a characterizing flavor when added to 
any electronic nicotine delivery system. 
 
Flavored Electronic Nicotine Delivery System m eans any electronic nicotine delivery system, 
or component part thereof that contains a c onstituent that has or produces a characterizing 
flavor.  A public statement, claim or indicia made or disseminated by the manufacturer of an 
electronic nicotine delivery system, or by any person authorized or permitted by the 
manufacturer to make or disseminate public st atements concerning su ch electronic nicotine 
delivery system, that such electronic nicotine delivery system has or produces a characterizing 
flavor shall constitute presumptive evidence that  the electronic nicotine delivery system is a 
Flavored Electronic Nicotine Delivery System. 
 
Liquid Nicotine Container means a package: 
(1)   from which nicotine or other substan ce in a solution or othe r 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 incl ude a sealed, prefilled and 
disposable container of nicotine or other subs tance in a solution or other form in which the 
container is inserted directly into an electr onic cigarette, electr onic nicotine delivery 
system or other similar produc t if the nicotine or other s ubstance 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 lis ted for a tobacco product on its 
package or the price listed on an y related shelving, posting, advert ising 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 pri ce, and before the applicati on of any discounts or coupons. 
 
Minimum Legal Sales Age mean s the minimum age of a person to whom a tobacco product 
may be sold or provided as determined by the Bo ard of Health, provided that such age may not 
be younger than 21 years old except for those i ndividuals who are 18 years of age before 
December 31, 2018, as verified by said person's proof  of identification; pr ovided further that a 
person who is 18 years of age before Decembe r 31, 2018 shall be subject to any municipal 
ordinance, by-law or other regulation that proh ibited sales of tobacco products to persons 
younger than 19, 20 or 21 years old in effect on December 30, 2018. 
 
Person means any individual, firm , fiduciary, partnership, cor poration, trust or association, 
however formed, or a club, trustee, agency or receiver. 
 
Retail Establishment means a physic al place of business or a se ction 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 m eans an establishment which is no t 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 persons younger than 21 years of age old is prohibited at all times, and 
maintains a valid permit for the retail sale of tobacco product s as required to be issued by the 
appropriate authority in the city , or town , or other legally constituted governmental unit At its meeting on Wednesday, February 12, 2020, the Public Health Council approved the amendments to 105 CMR 665.000, 
Minimum Standards for Retail Sale of Tobacco and Electronic Nicotine Delivery Systems. The Department will file the final 
amended version of the regulation with the Secretary of the Commonwealth. The revised regula tion will become effective on 
March 6, 2020, which is the date of its publication in the Massachusetts Register. 
 
 105 CMR:   DEPARTMENT OF PUBLIC HEALTH 
 
 
 
12/27/19  (Effective 12/11/19) 3870.3 EMERGENCY 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 cons umption by customers on 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  of age old; 
(3)   prohibits a food or beverage not so ld directly by the es tablishment from being 
consumed on the premises; 
(4)   maintains a valid permit fo r the retail sale of a tobacco pr oduct as required to be issued 
by the appropriate authority in the city , or town , or other legally constituted 
governmental unit within the Commonwealth  in which the establishment is located; and 
(5)   maintains a valid permit issued by the de partment 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 smok ed, chewed, absorbed, dissolved, inhaled, 
snorted, sniffed or ingested by any other means includi ng, but not limited to, cigarettes, cigars, 
little cigars, chewing tobacco, pi pe tobacco, snuff, el ectronic cigarettes, electronic cigars, 
electronic pipes, electronic nico tine delivery systems or any other similar products that rely on 
vaporization or aerosolization regardless of nicotine content in the product ; provided, 
however, that ''tobacco product'' shall also in clude any component, part or accessory of a 
tobacco product; and provided further, that ''tob acco product'' shall not include a product that 
has been approved by the United States Food and Dr ug Administration for the sale of or use as 
a tobacco cessation product and is marketed a nd sold exclusively for the approved purpose. 
 
665.010:   Sale of Tobacco Products and Electronic Nicotine  Delivery Systems 
 
(A)   No person shall sell or prov ide a tobacco product to any individual  younger than 21 
years of under the minimum legal sales  age, as verified by said person's valid 
government-issued photogra phic 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 behind the counter 
where retail sales are made in the establis hment and out of the reach of consumers. 
 
(C)    No person shall sell an electronic nicoti ne delivery system with nicotine content greater 
than 35 milligrams per millil iter outside of a retail tobacco 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 mill iliter.  Prior to the sale of such 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 establishment that is not a retail tobacco store or 
smoking bar documentation indicating the nico tine content expressed as milligrams per 
milliliter for each product to be so ld in the retail establishment.  The owner, retailer, or other 
person in charge of the retail establishment must maintain record of the nicotine content 
submitted by the manufacturer fo r each electronic nicotine deliver y system sold or offered for 
sale within the retail establishment, and provi de such records upon reque st of any authorized 
enforcement agent, including Boards of Health or their agents and the Department or its 
agents. 
 
(D)   No person, retail establishmen t, or manufacturer shall sell, di stribute, cause to be sold or 
distributed, or offer for sale to a consumer lo cated in the Commonwealth a flavored electronic 
nicotine delivery system or elec tronic nicotine delivery system flavor enhancer except for a 
smoking bar for on-site consumption  only . 
 
(E)   No person, retail establishment, or manuf acturer shall sell online,  distribute online, or 
cause to be sold or distributed online to any consumer located in the Commonwealth, an At its meeting on Wednesday, February 12, 2020, the Public Health Council approved the amendments to 105 CMR 665.000, 
Minimum Standards for Retail Sale of Tobacco and Electronic Nicotine Delivery Systems. The Department will file the final 
amended version of the regulation with the Secretary of the Commonwealth. The revised regula tion will become effective on 
March 6, 2020, which is the date of its publication in the Massachusetts Register. 
 
 105 CMR:   DEPARTMENT OF PUBLIC HEALTH 
 
 
 
12/27/19  (Effective 12/11/19) 3870.4 EMERGENCY electronic nicotine delivery system, except fo r 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 ba rs shall obtain prior to operation and shall 
maintain during any period of operation a municipa l 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 existing permitting requ irements in the municipality in which they 
operate shall not be subject to 105 CMR 665.013(A) unless the mu nicipality in which they 
operate later imposes a municipa l permitting requirement applicable to such establishments. 
 
665.015:   Required Signage 
 
(A) All retail establishments, including smoki ng bars and retail tobacco stores, shall 
conspicuously post signage, in the form deve loped and 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 resources; 
(3)   a statement that sale  of tobacco products, including  e-cigarettes, to someone younger 
than 21  under the minimum lega l sales age of 18  years of age old is prohibited;  
(4)   health warnings associated with usi ng electronic nicotine delivery systems; and  
(5)   except in the case of smoking bars, notice to consumer s that the sale of flavored 
electronic nicotine systems are prohibited at all times.  Such signa ge shall be posted 
conspicuously in the re tail establishment or ot her place in such a manner so that it may be 
readily seen by a person standing at or appr oaching 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 form developed and made available by the 
Department, on the exterior of the door provi ding 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:  
(1)   warn persons entering that smoking a nd vaping may be present on the premises, and 
provide information concerning the health risks associated with second-hand smoke and 
the use of electronic nicotin e delivery systems; and  
(2) 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 cons umption 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 th an nine from the bottom of th e door.  Such signage shall 
warn persons entering that smoking and vap ing may be present on the premises, and 
provide information concerning the health risk s 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 Departme nt in a form and manner as 
required by the Department. 
 
(ED)   Any person who violates 105 CMR 665.015 sh all be subject to th e provisions of 105 
CMR 665.045; provided that any retail esta blishment who violates 105 CMR 665.015(A)( 1a) 
or 105 CMR 665.015(A)( 2b) shall additionally be subject to a fine of not more than $50.  Any At its meeting on Wednesday, February 12, 2020, the Public Health Council approved the amendments to 105 CMR 665.000, 
Minimum Standards for Retail Sale of Tobacco and Electronic Nicotine Delivery Systems. The Department will file the final 
amended version of the regulation with the Secretary of the Commonwealth. The revised regula tion will become effective on 
March 6, 2020, which is the date of its publication in the Massachusetts Register. 
 
 105 CMR:   DEPARTMENT OF PUBLIC HEALTH 
 
 
 
12/27/19  (Effective 12/11/19) 3870.5 EMERGENCY person found to have unlawfully removed a copy of the postings required by 105 CMR 
665.015(A)( 1a) or 105 CMR 665.015(A)( 2b) shall be punished by a fine of not more than  
$10.00. 
 
665.017:   Advertising 
 
   No person or retail establishment shall: 
 
(A)   Market or advertise thea proposed sale or distribution of  any tobacco product prohibited 
for sale or distribution with in the retail establishment  or by such person ; 
 
(B)   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  
 
(C)   Use or display tobacco product advertis ements that depict celebrities, mascots, 
sponsorships, cartoons, or a ny other similar endorsements. 
 665.020:   Identification Requirements 
 
(A)   Unless otherwise sp ecified in 105 CMR 665.000, each pe rson selling or providing  
tobacco products shall verify the age of the purchaser by means of a valid government-issued 
photographic identification contai ning the bearer's date of birth that the purchaser is at least 21 
years of the minimum legal sales  age, as verified by said pe rson's proof of identification. 
 
(B)   In addition to the re quirements of 105 CMR 665.020(A), an employee of a retail tobacco 
store or smoking bar must inspect the indi vidual's valid government -issued photographic 
identification and determine the individual's age prior to said individua l entering said tobacco 
retail store or smoking bar.  An individual 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 meets 
minimum legal sales  age, as verified by said pe rson's proof of identification. 
 
(C)   Mail-order or internet sales shall requ ire verification that the purchaser is at least 21 years 
of age the Minimum Legal Sales Age .  Verification of age through the mail or in ternet shall 
consist of, at a minimum: 
(1)   verification that the purchaser is at least 21 years of age of the Minimum Legal Sales 
Age through a commercially available database, or a ggregate of databases,  that is regularly 
used by government and business for the purpos e 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 of the Minimum Legal Sales Age  before the shipping 
package is released. 
(3)   Any information required to complete th e age verification process must be requested 
on a form separate from that used to co llect payment informa tion, shall not include 
pPersonal iInformation 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 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 le ss than the listed or non-discounted pr ice.  No retail es tablishment 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 tobacco product. 
 
665.030:   Out-of-package Sales 
 
(A)   The sale of tobacco pr oducts, 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 At its meeting on Wednesday, February 12, 2020, the Public Health Council approved the amendments to 105 CMR 665.000, 
Minimum Standards for Retail Sale of Tobacco and Electronic Nicotine Delivery Systems. The Department will file the final 
amended version of the regulation with the Secretary of the Commonwealth. The revised regula tion will become effective on 
March 6, 2020, which is the date of its publication in the Massachusetts Register. 
 
 105 CMR:   DEPARTMENT OF PUBLIC HEALTH 
 
 
 
12/27/19  (Effective 12/11/19) 3870.6 EMERGENCY 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 th e consumer or retailer. 
 
665.035:   Liquid Nicotine Container Packaging 
 
No person shall knowingly sell or provide: 
 
(A)   A liquid or gel substance containing ni cotine unless the substa nce is contained in 
child- resistant packaging; or  
 
(B)  A liquid nicotine containe r unless the container includes child-resistant packaging as 
part of its design. 
 
665.040:   Requirements for Retail Establishments 
 
A retail establishment operat ing 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)   Operation of a retail establishment shal l 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 en sure compliance 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 establis hment 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 
ofunder the minimum sales  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 legally designated health au thority of the city, town, or other legally 
constituted governmental unit within the Commonwealth . 
 
665.045:   Violations 
 
Unless otherwise specified or provided fo r in 105 CMR 665.000, viol ations of 105 CMR 
665.000 shall be assessed as follows: 
 
(A)   It shall be the responsibility of a ny 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 provisi ons 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 case of a first viola tion, a fine of $1,000 shall be imposed. 
(2)   In the case of a second violation within a peri od 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 for 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 heal th 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 At its meeting on Wednesday, February 12, 2020, the Public Health Council approved the amendments to 105 CMR 665.000, 
Minimum Standards for Retail Sale of Tobacco and Electronic Nicotine Delivery Systems. The Department will file the final 
amended version of the regulation with the Secretary of the Commonwealth. The revised regula tion will become effective on 
March 6, 2020, which is the date of its publication in the Massachusetts Register. 
 
 105 CMR:   DEPARTMENT OF PUBLIC HEALTH 
 
 
 
12/27/19  (Effective 12/11/19) 3870.7 EMERGENCY additional violations during that time peri od, a fine of $5,000 shall be imposed; and a 
prohibition on the sale of tobacco products may be imposed for at l east 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 coopera te with inspections pursuant to th is 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 promul gated in a rule, regulation or other measure 
by the appropriate and legally designated he alth authority of the city, town, or other 
legally constituted governmental unit within the Commonwealth . 
 
(C)  Consistent with 105 CM R 665.055, a retail establishment sh all 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 theref or and establish a time and da te for a hearing.  The retail 
establishment , retailer,  or his or her its business agent shall have an opportunity to be heard at 
such hearing and shall be notified of the d ecision 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 produc ts upon a finding that a 
violation of 105 CMR 665.000 for which such prohibi tion is applicable o ccurred.  All tobacco 
products shall be removed from the retail establishment upon an  indefinite suspension from 
operating as a retail establishment.  Failure to  remove all tobacco products shall constitute a 
separate violati on of 105 CMR 665.000. 
 
(D)   Separate Violations.  Each day a ny violation of 105 CM R 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 issu ed by the Department or Board of Health to a 
person or a business agent of a retail establishment upon the re gulatory authority's reasonable 
belief that: 
(1)   A person is conducting sales of tobacco pr oducts 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 ope rating 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 retail 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 a nd certified mail return  receipt requested; or 
(4)   By any officer of the Commonw ealth 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)  Local Enforcement. 
  (1)   General Procedures.  Unless otherwise expressly provided in any general law to the At its meeting on Wednesday, February 12, 2020, the Public Health Council approved the amendments to 105 CMR 665.000, 
Minimum Standards for Retail Sale of Tobacco and Electronic Nicotine Delivery Systems. The Department will file the final 
amended version of the regulation with the Secretary of the Commonwealth. The revised regula tion will become effective on 
March 6, 2020, which is the date of its publication in the Massachusetts Register. 
 
 105 CMR:   DEPARTMENT OF PUBLIC HEALTH 
 
 
 
12/27/19  (Effective 12/11/19) 3870.8 EMERGENCY contrary, each board of hea lth may enforce 105 CMR 665.000, or otherwise at law or in 
equity in the same manner that loca l rules and regulati ons are enforced. 
(2)   Emergency Procedures. 
(a)   Whenever an emergency related to tob acco products exists in which the interest of 
protecting the public health re quires that ordinary procedur es 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 th at such action be taken as the board of 
health deems necessary to m eet 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 consti tute a separate offense.  Upon compliance 
with the order and within seven days after th e day the order has been served, he or she 
may file a written peti tion in the office of the board of  health requesting a hearing.  He 
or she shall be granted a hearin g as soon as possible, but not later 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)( 2b) shall be construed as a limitation on the 
emergency powers of the Depa rtment of Public Health of the Commonwealth or its 
Commissioner. 
 
(B)   Complaints.  Any person who desires to register a complaint pursuant to the regulation 
may do so by contacting the Board of H ealth or its designated agent(s) in the city, town , or 
other legally constituted government al unit within the Commonwealth  where the retail 
establishment is located. 
 
(C)   State Enforcement. 
(1)   Whenever any Board of Health has failed afte r 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 Commo nwealth 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 authorit y that an electronic 
nicotine delivery system has been shown by subs tantial epidemiologic, laboratory, or other 
evidence to be the cause of an imminent danger to public health, the Commissioner of 
Public Health may place a ban or restriction on the sale of such electronic nicotine delivery 
system. 
 
(D)  Service of Orders. 
(1)   Unless otherwise stated in 105 CMR 665.000, orders issued under the provisions of 
105 CMR 665.000 shall be served on all pe rsons responsible fo r the violation. 
(2)   These orders shall be served in the following manner: 
(a)   personally, by any person auth orized to serve civil process; 
(b)   by any person authorized to serve civil process by leaving a copy of the order at his 
or her last and usual place of abode; 
(c)  by sending him a copy of th e 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 with in the municipality wh erein 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 Health or the Department, as 
applicable, by filing with the Board of Health  or the Department, as  applicable, within At its meeting on Wednesday, February 12, 2020, the Public Health Council approved the amendments to 105 CMR 665.000, 
Minimum Standards for Retail Sale of Tobacco and Electronic Nicotine Delivery Systems. The Department will file the final 
amended version of the regulation with the Secretary of the Commonwealth. The revised regula tion will become effective on 
March 6, 2020, which is the date of its publication in the Massachusetts Register. 
 
 105 CMR:   DEPARTMENT OF PUBLIC HEALTH 
 
 
 
12/27/19  (Effective 12/11/19) 3870.9 EMERGENCY seven days after the day the or der was served, a written petiti on requesting a hearing on the 
matter.  Upon receipt of such  petition, the Board of Hea lth or the Department, as 
applicable, shall set a time and place for su ch hearing and shall inform the petitioner 
thereof in writing.  The hearing shall be commenced not later th an 30 days after the day on 
which the order was served.  The Board of He alth or the Department, as applicable, upon 
application of the petitioner, may postpone the date of hearing for a reasonable time 
beyond such 30-day period if in th e judgment of the Board of H ealth or the Department, as 
applicable, the petitioner has submitted a good and su fficient reason for such 
postponement. 
(2)   Hearing of Petitioner.  At the hearing the petitioner shall be given an opportunity to 
be heard and to show why the orde r should be modified or withdrawn. 
(3)  Procedure by the Board after Hearing.  Af ter the hearing the Boar d of Health or the 
Department, as applicable, shall sustain, modi fy, or withdraw the order and shall inform 
the petitioner in writing of its decision.  If th e 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 offi ce of the clerk of the city , or 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 Sust aining 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 pa rt, each day's failure 
to comply with the order as issued or modi fied shall constitute an additional offense. 
 
(F)   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 th erefrom 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 regula tions promulgated by the department or state or 
federal law. 
 
665.060:   Severability 
 If any provision of 105 CMR 665.000 is declar ed invalid or unenforceable, the other 
provisions shall not be affect ed thereby but shall continue  in full force and effect. 
 
 
REGULATORY AUTHORITY 
 
105 CMR 665.000: St. 2018, c. 157, §§ 17 thr ough 19; M.G.L. c. 111, § 239; and 
M.G.L. c. 270, §§ 6, 7, and 27 through 29.