The Board of Health voted unanimously on Dec. 13 to make Needham the 12th Massachusetts community to adopt an “age-gated” tobacco ban policy that will not allow the sale of nicotine products to individuals born after Jan. 1, 2004.
The vote means anyone who has not turned 21 by the end of this year will never be able legally to buy tobacco products in Needham.
The board voted after holding multiple public hearings on the policy, which was influenced by the “nicotine-free generation” strategy for reducing the prevalence of nicotine use among young people. The policy defines tobacco product to mean “a product containing or made or derived from tobacco or nicotine that is intended for human consumption.”
The new regulations will be rolled out Jan. 1 for a 90-day “education period” during which the town’s six licensed tobacco retailers will be issued warnings for any illegal sales. After April 1, they will face an escalating scale of fines that start at $1,000 for a first violation accompanied by a seven-day suspension of their tobacco product sales permit.
In 2021, Brookline became the first municipality in the United States to pass a bylaw allowing the sale of tobacco and e-cigarette products only to those born before a certain date. Needham’s vote was among three “forever bans” enacted last week in the state.
The statewide flurry of activity began earlier this year after the constitutionality of the 2021 Brookline ban was upheld as a legitimate use of a local public health board’s authority. A group of retailers had sued Brookline, arguing the ban was preempted by a state law raising the minimum purchase age to 21, and that it also violated the Massachusetts Constitution’s equal protection rights.
Many of the same people who made the same arguments for and against the bans as they were being discussed throughout the state also spoke in Needham, in what has become something of a traveling road show.
Representatives from a state convenience store retailers trade association warned of financial harm to small businesses. Other opponents of the bans railed against “nanny state” regulatory overreach. A Cambridge-based smokers’ rights group said the ban echoed America’s failed experiment with Prohibition — an argument also made by members of Needham’s Select Board.
Opponents also fear the prospects of fueling a gray-market economy for unsafe bootleg products, as well as the looming future scenario of middle-aged individuals being carded and possibly denied the right to purchase tobacco products. Of course, until these bans become widespread, consumers can just shop in nearby communities.
At the end of the day, the arguments put forward by a coalition of public health advocates, including Needham High School students, proved more persuasive to the Board of Health. They repeatedly emphasized that the phased-in policy targets the prevention of first-time nicotine exposure to youths while leaving current adult users unaffected.
The phased approach, they said, gives retailers ample time to alter their product offerings to become less reliant in the future on tobacco-related products. The ban is intended to cut off the supply of future customers, not current ones.
Needham’s history on tobacco regulation
Needham has a significant track record on tobacco regulation, especially related to the youth market. In 2005 Needham became the first community in the country to enact the Tobacco 21 policy. This eventually led to federal legislation raising the federal minimum age for sale of tobacco products from 18 to 21.
Two pediatricians affiliated with Mass General Brigham, Jonathan Winickoff and Needham resident Lester Hartman, were a consistent presence at the Board of Health hearings. They provided testimony based on their extensive research on youth smoking and the need to protect youth from what they characterized as the tobacco industry’s relentless marketing of nicotine products to them.
It is crucial, they argued, to keep tobacco products out of the hands of youths so they do not fall into the trap of addiction, which they say effectively deprives them of their free will by making them addicted before their brains are fully formed.
“I’ve never heard a youth under the age of 21 say that they are opposed to nicotine-free generation,” said Winickoff. “On the other hand, I’ve heard hundreds of kids speak about what they want for their future and their friends.
“They do not want to face what a grandparent has faced in their families, what they see in some of their friends using nicotine, becoming addicted.”
Winickoff was especially dismissive of the tobacco industry’s claim that products such as flavored nicotine pouches, which do not contain tobacco, are intended as cessation aids for those trying to quit smoking. Products such as Zyn nicotine pouches come in small metal cans that resemble a tin of mints. They also come in a wide variety of flavors — citrus, cinnamon, “chill,” “smooth” — and are consumed orally.
Opponents refer to this as the tobacco industry’s “candification” of nicotine. While not as harmful as “combustible” tobacco products such as cigarettes, they are delivery systems for nicotine and therefore can lead to addiction.
In its discussion prior to taking a vote, the board spent some time reviewing its language related to unflavored oral nicotine pouches. Health and Human Services Director Tim McDonald said, “Right now, (the unflavored pouches) are in a legal gray area because they’re not regulated federally by the FDA.” It’s not clear if they are considered cessation tools, he added.
The draft of the new regulation had language that restricted the sale or distribution of oral nicotine pouches to adult-only retail tobacco stores — of which Needham has none. But the board opted to remove that language for now so it can study whether unflavored pouches need to be further differentiated from flavored pouches.
“The board will dive a little deeper into the question of whether oral nicotine pouches are a legitimate cessation tool for adult smokers or whether they are a product designed to appeal to youth,” said McDonald.
One student’s story
For Isabel Tashie, the Board of Health’s vote to implement the Nicotine-free Generation’s “forever ban” on tobacco products was the culmination of a mission she began out of concern for a friend.
“I’ve always been super interested in substance misuse prevention,” the Needham High junior said of her motivation for working on behalf of the ban over the past several months, including speaking at Board of Health and Select Board meetings in support of the ban.
“I had a friend who began using Zyn nicotine pouches her freshman year of high school,” she said. “Because the packaging looked almost exactly like gum, she thought it wouldn’t have too big of a negative effect on her.”
“She perceived it as less harmful. Their marketing worked on her,” she said of the so-called “candification” of nicotine-based products.
By her sophomore year, Tashie said, her friend had developed a dependence on the pouches.
“One day, during class, she just started crying. She’d already gone to the bathroom once in that class to use these nicotine products. She wanted to go use it again, but the teacher was not going to let her go a second time. But she was so addicted, she couldn’t handle going without it.
“It was really scary and so sad to see a friend get so addicted by a product that was marketed to her to look like candy.”
Tashie said she will continue to continue to be involved with the Substance Prevention Alliance of Needham (SPAN), a volunteer coalition for youth substance use prevention. She plans to continue to advocate bans in other communities, she hopes, if and when a statewide ban is proposed. And she said she is not alone.
“I think the overwhelming youth consensus is that people are for this,” she said of her peers.
“They all have a relative or a friend who have gotten addicted. They want these products to be phased out. Youth are the ones that are driving this in a lot of towns.”
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