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Massachusetts Law About Smoking

Massachusetts Laws

MGL c.64C. Cigarette Excise. Regulates pricing, taxation and other aspects of cigarette sales.

MGL c.148, s.60. Prohibits the use of novelty lighters.

MGL c.270, s.6, Tobacco: Sale or Gift to Minors.

MGL c.270, s. 22. Smoking in Public Places

Massachusetts Regulations

105 CMR 661 Regulations Implementing MGL c.270 s.22. Provides detailed requirements for allowing smoking in membership associations and outdoor spaces.

501 CMR 14 Fire-Safe Cigarettes

830 CMR 270.1.1 Provisions Concerning the Issuance of a Smoking Bar Permit.

Federal Laws

15 USC 1335 Television and Radio Advertising.

Selected Case Law

American Lithuanian Naturalization Club Athol Mass. v. Board of Health of Athol, 446 Mass. 310 (2006). A local board of health has "the authority to promulgate a regulation that prohibits smoking at all times in the premises of membership associations, sometimes referred to as private clubs."

Donovan v. Philip Morris, 455 Mass. 215 (2009). Plaintiffs have a claim for "medical monitoring based on subclinical effects of exposure to cigarette smoke and an increased risk of lung cancer" if they prove "(1) The defendant's negligence (2) caused (3) the plaintiff to become exposed to a hazardous substance that produced, at least, subcellular changes that substantially increased the risk of serious disease, illness, or injury (4) for which an effective medical test for reliable early detection exists, (5) and early detection, combined with prompt and effective treatment, will significantly decrease the risk of death or the severity of the disease, illness or injury, and (6) such diagnostic medical examinations are reasonably (and periodically) necessary, conformably with the standard of care, and (7) the present value of the reasonable cost of such tests and care."

Haglund v. Philip Morris, 446 Mass. 741 (2006). In determining whether a cigarette manufacturer may "assert as an affirmative defense that the decedent smoker's use of cigarettes was "unreasonable, "" court held "Because no cigarette can be safely used for its ordinary purpose, smoking, there can be no nonunreasonable use of cigarettes. Thus the Correia defense, which serves to deter unreasonable use of products in a dangerous and defective state, will, in the usual course, be inapplicable."

Other Web Sources

Smoking In General

Massachusetts Tobacco Control Program, Mass. Dept. of Public Health. Contains description of and links to all significant tobacco laws and regulations in Massachusetts, including sales to minors, smoking in the workplace, licensing of retail outlets, vending machine sales and more.

Smoking in Apartments or Condominiums

Harwood Capital Corp. v. Casey, Boston Housing Court 05-SP-00187, June 3, 2005. In what may have been the first verdict of its kind, a jury ruled for a landlord seeking to evict tenants for smoking, even though smoking was permitted in the building. Neighboring tenants had complained to the landlord about the smoke seeping into their units.

Legal Options for Condominium Owners Exposed to Secondhand Smoke, Tobacco Control Legal Consortium, December 2006. "This synopsis discusses legal options available to a condominium owner exposed to drifting secondhand smoke from a neighboring condominium unit." Includes preliminary steps, legal options, the use of arbitration or mediation, and "observations about the implementation of smoke-free policies for condominium complexes."

Secondhand Smoke Seepage into Multi-Unit Affordable Housing, by Susan Schoenmarklin, Tobacco Control Legal Consortium, April 2010. Discusses the legality of prohibiting "smoking in public housing and HUD-assisted residential units," and "outlines the procedure that public housing authorities and HUD-assisted owners must follow to enact smoke-free policies legally and provides recommendations on how to enforce such policies."

Snuffing Out Puffing Neighbors, Boston Globe Magazine, March 16, 2008. Explores the possibility of a smoking ban in multi-unit housing in Massachusetts. "Many landlords are under the impression that it is illegal to ban smoking in apartments. Not so, says Eileen Sullivan, director of policy and planning for the state's Tobacco Control Program: 'We see it as similar to the issue of whether to allow pets.'"

Smoking In the Workplace

Massachusetts Laws on Smoking in the Workplace, Nolo. "Information on Massachusetts workplace smoking laws, including accommodations for smokers and employer policies on smoking."

Massachusetts Smoke-Free Workplace Law, Mass. Dept. of Public Health. Includes links to the law, information for employers, exceptions and more.

Workplace Smoking: Options for Employees and Legal Risks for Employers, Tobacco Control Legal Consortium, 2008. This advocacy piece "explores policy options for employees to make their workplace smokefree and legal options for employees who remain exposed to secondhand smoke on the job."

Employer Regulation of Smoking Away from Work

Rodrigues v. EG Systems d/b/a/ Scotts Lawn Services, 639 F.Supp.2d 131, Dismissed July 23, 2009. Scott Rodrigues was fired by Scotts Lawn Care for smoking away from the workplace, and brought suit against the company under privacy and ERISA laws. The court held that "Rodrigues does not have a protected privacy interest in the fact that he is a smoker because he has never attempted to keep that fact private," and "A person such as Rodrigues, who has only a contingent offer of employment, does not have an expectation of benefits under the potential employer’s ERISA plan that Section 510 protects."

Smokers Need Not Apply, Boston Globe, December 19, 2010. "Under a new policy believed to be the first of its kind for a hospital in Massachusetts, Anna Jaques Hospital in Newburyport last month began testing prospective employees for nicotine use. Those who fail the screening can forget about a job." Highlights this and other employers prohibiting smoking away from the workplace.