Massachusetts’s High Court Upholds Novel Local Restriction on Tobacco Purchases

A town in Massachusetts has found an innovative way to avoid losing local policies to state preemption.

Under preemption doctrine, when a state enacts a law, it can preclude a local government from enacting its own local regulation on the same issue. Very often, state preemption has frustrated liberally oriented communities in conservative states from adopting local ordinances that reflect more progressive values. The doctrine of state preemption has been applied to prevent local governments around the country from boosting the minimum wage, regulating firearms, banning single use plastic bags, providing sanctuary to immigrants, and barring certain forms of discrimination, among other policies.

But a recent decision by the Massachusetts high court upholding a tobacco-related law could offer a model for localities to avoid or win policy clashes with states across a wide array of subject areas.

In 2018, the Massachusetts state legislature amended the law prohibiting the sale of tobacco products, raising the age limit for purchasers from 18 to 21. The act expressly preempts any “inconsistent, contrary or conflicting” local law related to the statewide minimum age provision, but it allows local communities to craft other ways of limiting tobacco sales.

In response, the residents of Brookline, a leafy town bordering Boston, adopted a provision believed to be unique in the nation. Under the local bylaw, potential consumers of tobacco products are divided into two groups based on birth year. One group consists of individuals born before January 1, 2000 — those who had reached 21 years of age at the time the bylaw went into effect. The other group consists of those born on or after that date. In Brookline, merchants may sell tobacco products only to those in the first, older group but not to the younger group, no matter what age those in the second group attain. As time passes, those in the group born in 2000 or later will grow, while the group of people born in the 20th century will dwindle, resulting in a gradual and growing prohibition on sale of tobacco products in Brookline. If the bylaw remains in place, eventually no one will be left in the first group, leaving no one to whom Brookline businesses can sell tobacco products.

Several small businesses in Brookline, including a gas station and a convenience store, sued. They argued that the Brookline regulation was preempted by the statewide tobacco statute. In addition, they argued it violated the state constitution’s equal protection provisions. Massachusetts’s supreme court rejected both claims and upheld Brookline’s novel incremental ban on tobacco sales.

Massachusetts has long allowed local communities some variations in tobacco regulation. Many of these local variations have involved additional restrictions on locations where smoking itself or tobacco purchases could be regulated, such as extending purchasing restrictions to vending machines. The state has also permitted local governments to adopt minimum age limits that are more restrictive than state law. For example, by the time the 21-year age limit was established statewide, over 175 municipalities had already adopted the same age limit as a local matter. The Brookline bylaw, however, was a new type of variation.

Evaluating the state preemption challenge to Brookline’s bylaw, the high court first noted that local laws “are presumed to be valid,” unless they are inconsistent with the state constitution or statutory law. In Massachusetts, a “sharp conflict” between the local laws and state laws is necessary to establish preemption. Analyzing the specific wording of the state statute, the court concluded that there was no “sharp conflict.” Under the Brookline bylaw, no merchants could sell tobacco products to anyone under age 21, the same restriction as the state. The fact that the Brookline law also precluded sales to a gradually increasing number of others, all of whom would be over age 21, did not establish a conflict. Rather, the court concluded that the Brookline bylaw “augments” the state law and is consistent with the state legislature’s general purpose of restricting sales of tobacco as a means of promoting public health. 

The court also rejected the claim that preemption could be implied, noting that the state and local provisions share the purpose of protecting “against the harmful effects of tobacco products,” particularly for youth. As the cohort of people born before 2000 shrinks over time, young people in the town will have less and less access to tobacco products through their regular social circles, and town merchants will have less and less reason to stock tobacco products on their shelves.

The decision made short work of the equal protection claim. The court summarily rejected the retailers’ contention that discrimination on the basis of birth year should be given heightened scrutiny. Instead, the high court hewed to established categories for heightened scrutiny — triggered by fundamental right or a suspect classification — and found neither to be present. The plaintiffs did not suggest that there was a fundamental right to the purchase or sale of tobacco products, and the court indicated that it would have rejected that claim in any event. The court observed, too, that many members of the group born after January 1, 2000 are eligible to vote and can take action at the ballot box to repeal the bylaw if they wish.

Evaluating the law under a more deferential standard — asking whether it was rationally related to a legitimate government purpose — the court pointed to the significant research on the “ill effects of tobacco use, particularly when it involves minors.” Given the town’s interest in avoiding those negative health outcomes, the court found that the line separating the two groups — i.e., the birth date of January 1, 2000 — was rational. It preserved in-town purchasing options for those older users who may already have acquired tobacco addictions, the court explained, while discouraging tobacco purchase by the ever-growing number of young adults born after 2000, who may not have yet “formed addictive habits.” And, the court added, because the bylaw has only a gradual, incremental impact on retailers, it gives them ample time to adjust to shrinking tobacco sales.

It will be a relatively simple matter for most Brookline residents, including young adults, to purchase tobacco products in nearby Boston. But the ruling gives the green light to other Massachusetts communities to enact similar incremental bans which, over time, could create greater hurdles for tobacco purchasers. And while preemption law varies from state to state and even law to law, the Brookline innovation is one that may inspire communities to devise new ways to overcome state preemption in other areas that threaten public health and involve age limits on purchases, such as firearm sales.

Martha F. Davis is a distinguished professor at Northeastern University School of Law.