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Northampton's Board of Health raised the legal tobacco sales age to 21, limited the sale of flavored tobacco to adult-only shops, and decreased the number of tobacco sales licenses.

(Republican File Photo)

NORTHAMPTON -- The Board of Health on Thursday unanimously adopted three related measures to limit and regulate tobacco sales in the city.

The board increased the minimum legal sales age of tobacco and nicotine delivery products from 18 to 21; restricted the sale of flavored tobacco products to permitted tobacconists, and decreased the number of tobacco sales permits from 36 to 28. Current permit holders would be grandfathered.

Under city regulations, a tobacconist is distinct from a convenience store that sells tobacco and nicotine delivery products. A tobacconist has as its primary purpose the sale of tobacco and related paraphernalia. At a tobacconist, the entry of people under the age of 21 is prohibited at all times.

The new rules will go into effect in January of 2017.

A half-dozen convenience store owners spoke during a public comment session to raise objections, saying the measures unfairly target small businesses and their adult customers.

"Completely banning flavored products is unfair to us," said Gaurang Patel, owner of Bird's Store in Florence. He noted that Big Y supermarket sells alcohol, a substance harmful to youth, and that nobody seems to mind.

A number of public health advocates vouched for the measures, saying such products should not be conveniently available to those under 21.

"We've seen a decrease in cigarette smoking among youth, but an increase in vaping" and flavored tobacco products, said Heather Warner, coordinator of the SPIFFY Coalition, a Hampshire County group that fights substance abuse among youth.

Melinda Calianos of the Hampshire and Franklin County Tobacco-Free Community Partnership said around 90 percent of adult smokers started young. "We have to protect them against a lifelong, horrible addiction to tobacco," she said.

Riley DiPillo, a Northampton resident and student at Smith Academy at Hatfield, said it's easy for young teens to "pass as 18" and that "big tobacco targets youth." He said he's part of "the 84 movement," a statewide student effort to fight tobacco in Massachusetts.

Convenience store owners who spoke included Mohamed Rilshad, owner of Z-Mart at 15 Locust St.; Dipan Patel, owner of Northampton Market at 48 Old South St., Sunny Patel and his daughter Priya Patel of Mock's Convenience at 100 Damon Rd.; Mehmood Ahmed of King Street Convenience; and Atif Tasneem, owner of Racing Mart at 54 Northampton Road.

Adam Hazel, owner of The Vault at 135 Main Street, said restrictions on "e-juice" would hurt his downtown novelty shop. "It will hurt a lot of businesses providing a service to adults," he said.

Patel, the owner of Bird's, pleaded with the board to allow a "creative approach" where flavored tobacco products would not be visibly displayed, but available upon request to those who show I.D. Those over 21 would be able to look through a notebook to choose products.

However, the board balked after D.J. Wilson, a representative from the Massachusetts Municipal Association, advised them that such an approach may not survive a court challenge.

Board member Joanne Levin, a physician, told Patel she was "intrigued with your idea, but unfortunately, it's not legal."

Wilson said a 2013 federal appeals court ruling concerning Providence, Rhode Island, set a legal framework for municipal tobacco regulation. He said Providence was sued by the tobacco industry after banning the sale of flavored tobacco products. The court ruling recognized that cheap, flavored tobacco products are attractive to youth, he said.

In response to another question from Levin, Wilson said efforts to restrict the advertising of tobacco products would likely run into a First Amendment challenge.

Wilson advised the board to "stick to the Providence language" to effectively fight youth tobacco use while staying on the right side of the law.

Wilson said 134 Massachusetts cities and towns have raised the legal tobacco sales age to 21, that 75 have restricted the sales of flavored tobacco products. Others have established minimum pricing for cigars.

After the vote, the group of store owners quickly left the room, and most declined to comment. However, Gaurang Patel said he felt the group had not gotten a fair hearing. "They had already made up their minds," he said. "They could have worked with us."

Under the rules, a first violation will net a shop owner a $100 fine; a second violation a $200 fine and a seven-day tobacco license suspension; a third violation a $300 fine and a 30 day suspension; and a fourth violation a permanent tobacco sales permit revocation.

Mary Serreze can be reached at mserreze@gmail.com